Davies v. Chicot County Drainage District

• Court: Arkansas Supreme Court
• Writing for the Court: SMITH, J.
• Citation: Davies v. Chicot County Drainage District, 112 Ark. 357, 166 S. W. 170 (Ark. 1914)
• Decision Date: 06 April 1914
• Docket Number: 251
• Parties: DAVIES v. CHICOT COUNTY DRAINAGE DISTRICT

166 S.W. 170

112 Ark. 357

DAVIES v. CHICOT COUNTY DRAINAGE DISTRICT

No. 251

Supreme Court of Arkansas

April 6, 1914

Appeal from Chicot Chancery Court; Z. T. Wood, Chancellor; affirmed.

STATEMENT BY THE COURT.

This cause was submitted upon an agreed statement of facts from which it appears that the Chicot County Drainage District was created by a special act of the General Assembly, approved May 26, 1911, the same being Act No. 299. Section 12 of said act provided for the assessment of the drainage tax, and required that, upon the completion of said assessment, a notice thereof be published in some newspaper for three weeks to the end that any land owner might file exceptions against his assessment. That said assessment should have been made at the meeting of the board of directors in September, 1912, but was not made until the 8th day of October, 1912, the same being an adjourned day of said September meeting. That the board assessed all the lands in the drainage district including those of appellant at seven cents per acre, but the board gave no notice whatever of said assessment. That the survey of said district had been completed, plans and specifications for complete drainage of the district prepared, maps, profiles and field notes of the same deposited with the district and are now held as its property and that the said assessment was made for the purpose of repaying the money borrowed by said district from the banks of the county, which had been used in paying for the survey of the district and other necessary expenses of the board. That said Special Act No. 299 of the General Assembly of 1911 had been repealed by Act No. 181 of the Acts of 1913, which was approved March 13, 1913. It was further recited in the agreed statement of facts that the taxes had been extended upon the tax books and that the collector was proceeding to collect and would enforce the collection of said taxes.

A temporary restraining order was granted, which was dissolved upon the final hearing, at which time the court dismissed the complaint and entered judgment for the amount of the taxes and declared the same a lien upon the lands described in the complaint.

This appeal is prosecuted from that decree. The court declined to assess the penalty of 10 per cent imposed by the act of 1911 against land owners who failed to pay their taxes within the time limited by said act, and the drainage district has prosecuted a cross appeal from the court's refusal so to do.

Decree affirmed.

J. R Parker, for appellant.

1. The assessment and levy was void. The notice required was not given. 86 Ark. 238.

2. A flat rate of seven cents per acre was assessed when the act says that assessments shall be made according to benefits. 71 Ark. 561; 84 Id. 395; 89 Id. 513.

3. The board had no power to make a levy for the survey and expenses.

4. The curative act is a nullity. 83 Ark. 344-348; 89 Id 517; 68 Id. 336.

W. G Streett and J. C. Gillison, for appellee.

All the objections mentioned were settled by the Act of 1913, page 756. All defects were cured and all acts of the board validated. 83 Ark. 344; 43 Id. 420; 90 Id. 600.

OPINION

SMITH, J., (after stating the facts).

Appellant contends that the assessment and levy is void because the board gave no notice of the assessment, as required by section 12 of the act under which they were operating; and because a flat rate of seven cents per acre was levied when the act required the board to make the assessment according to benefits; and for the additional reason that said assessment was made for the purpose of paying for the survey and the expenses of the board, when they were only authorized to levy an assessment against the lands for the purpose of digging the drainage canals of said district.

Practically all of the questions involved here were considered and decided in the case of Board of Directors of Crawford County Levee District v. Dunbar, 107 Ark. 285, 155 S.W. 96. There an improvement district had been dismembered, here one has been abolished, and in both cases provision was made for the preliminary expenses of the district. The act of 1913 provided for the dissolution of the district, but it recognized that the district had incurred obligations which were then outstanding and provision was made for their payment. That provision was contained in the following language:

"Provided that whereas the board of directors of said drainage district have levied an assessment against the lands, lots and railroad rights-of-way in said district, be it enacted that all of the acts of said board of directors in relation to the assessment, levy and collection of said assessment be, and the same are hereby validated; and the collector of taxes for said county of Chicot is hereby authorized and directed to pay over to said board of directors all such sums of money as he may collect under said assessment, when collected; and the said board of directors be, and the same are, hereby empowered and authorized to pay out of the moneys coming to their hands, from said assessment, in payment of all debts and obligations created by said board, and the surplus remaining, if any, in their hands, shall be covered...