Davies v. Gaines

• Decision Date: 12 February 1887
• Citation: 3 S.W. 184,48 Ark. 370
• Parties: DAVIS, AS COLLECTOR, v. GAINES
• Court: Arkansas Supreme Court

3 S.W. 184

48 Ark. 370

DAVIS, AS COLLECTOR, v. GAINES

Supreme Court of Arkansas

February 12, 1887

APPEAL from Chicot Circuit Court, in Chancery, Hon. J. M. BRADLEY Judge.

Judgment reversed.

John G B. Simms and D. H. Reynolds, for appellant.

The questions in this case depend upon the constitutionality of the act of March 20, 1883, to provide for building and repairing levees in Chicot county. This act was framed on the model of the act of 1857, the constitutionality of which was sustained in 21 Ark. 40, and ib., 60.

Section 19 of the act gives all parties a day in court to be heard and though after payment, yet in ample time. Welty on Assessments, sec. 250, and note 8; 21 F. 99; 100 N.Y. 585-9; Cooley on Tax., 449, 450. Giving the taxpayer a day to object is merely a grace; if such day is not given it is not a matter of which he can complain; the courts could not grant him any relief as against the decision of the legislature. 100 N.Y. 589.

By section 15 the taxpayer is given a day to be heard before the levy of any taxes that may be levied by the board after the year 1882.

The provision as to notice before passage of special acts was intended to govern and control the legislature, and cannot be inquired into by the courts.

If the legislature had authority to pass the act under consideration, and to determine that the lands benefited by the levees to be built should bear the burden of the tax or assessment, and did, itself, determine what lands were so benefited--as we have seen from the authorities cited it did have--then the allegations of the complaint, or facts sought to be brought forward thereby, about the lands of the plaintiff not being benefited, and that other lands were improperly exempted, and that lands not alluvial were taxed etc., are not well pleaded, and are not admitted by the demurrer.

And the same may be said of each and every of the six specified grounds of unconstitutionality named in the complaint. For if the legislature might pass such an act, then it had a right to determine for itself all these matters, and its decision is not the subject of review by the courts. The Supreme Court of New York, in Spencer v. Merchant, 100 N.Y. 589, says: "The question of special benefit, and the property to which it extends, is of necessity a question of fact, and when the legislature determines it in a case within its general power, its decision must of course be final."

The power of the legislature to pass this act of 1883 certainly exists under the constitution, unless there is some express or implied prohibition therein. The constitution of the state merely regulates or limits the power of the legislature. The power of the legislature would be as unlimited as that of the British parliament but for the limitations in the constitutions of the state and of the United States. Then, as the limitation on taxation applies to general taxation for public purposes only, and not to local assessments, we may well ask what provision or prohibition of the constitution of this state has been violated in this act of March 20, 1883?

Then we are narrowed down, as it were, to this question: May the legislature authorize the building or repairing of levees to protect or reclaim from overflow the swamp lands in Chicot county or elsewhere in the state, and authorize the levy of a tax or assessment upon the assessed value of the lands protected or benefited by such levees, to raise funds for building and repairing such levees?

The authorities maintain the affirmative of this question, some placing it on the state's right of eminent domain, and others placing it under the police power of the state; but all agreeing that the right exists, and that its exercise is not denied by reason of any limit fixed in the constitution on the power of taxation for general public purposes, as it does not fall within that provision. Cooley's Const. Limitation, 4th Ed., 620, 621, 634-6, and notes; Cooley on Taxation, 416, 418, 427, 429, 430, 401, 402, 435, 436, 447, 448, 449, 450, 454, and note; Welty on Assessments, secs. 250, 297, 330, 343, 382; 4 Dillon, 216; 21 F. 99; 100 N.Y. 585; 21 Ark. 40, 60.

W. B. Street, for appellee.

First--The act is without authority of law and void, because the act was approved March 20, 1883, and the tax for 1882 was entered upon the tax lists and extended by the clerk in March, 1883, before the act became a law.

"The general assembly may delegate the taxing power to subordinate corporations, to the extent of providing for their existence and well being, but no further." (Bill of Rights, sec. 23.) By the imposition of this tax the legislature proceeded without due process of law (Sec. 8, Bill of Rights), and thereby deprived the tax-payers of said county of their day in court, of their right to be heard, and to determine "all questions as to whether or not any given tract of land is legally taxable for levee purposes under the provisions of the act itself." (See section 15 of said act.)

The proviso to section 14 of said act, excepting and exempting certain lands from said tax of 1882, is in violation of sec. 6, art. 16, constitution 1874.

The constitution inhibits the legislature from exempting other real property from taxation than that enumerated. The rule of uniformity in taxation requires uniformity in the rate of taxation, and in the mode of assessment there must be an equality of burden, and this applies to subordinate and local taxation. Fletcher v. Oliver, 25 Ark. 289.

The legislature may suspend the operation of the general laws, but not for individual cases or particular localities. Cooley Const. Lim., 2d Ed., 390 and 392, and note 3.

The exemption laws cannot be varied for particular cases or localities. 13 Wis. 238 and 244; L. R. & T. R. R. Co. v. R. W. Worthen, Collector, 46 Ark. 312.

The proviso to section 14 of said act is therefore void, and the tax imposed by the legislature for 1882 is without authority of law.

Second--Said act is unconstitutional and inoperative. Assessors are officers of the law, and must obey the law; that a valid assessment is a prerequisite to all taxation will not be controverted. This is the citizen's only security against an unequal tax. This act makes no provision for assessment. The proposition that before property can be subject to taxation there must be an assessment, under a law passed by the legislature, and by a tribunal or officer clothed with power to make such assessment, will not be denied. No tax shall be levied except in pursuance of law. Art. 16, sec. 11, Const.

The act in question makes no provision for an assessment--confers the power of assessment upon no tribunal or officer, and designates no mode or manner, and prescribes no rule by which a just and equal taxation for levee purposes may be made; whether an ad valorem tax, or a tax in proportion to benefits that may be derived from the levees, is left in doubt. The fourteenth section reads: "There shall be levied and collected in said county, on all alluvial lands therein, that now are or would be benefited by levees, a levee tax not exceeding 2 per centum on the assessed value thereof." Now, how is this assessment to be made equal and uniform? Some of the lands in the county of Chicot may not be alluvial and may not be benefited by levees. If they are benefited by levees, some no doubt are much more benefited than others; hence, under the above clause, the valuation must be in proportion to the benefit. Lands not alluvial and above overflow, a long distance from the river front, may be indirectly benefited and subject to the tax, as held in McDermott v. Mathews, 21 Ark. 60.

It will not be contended that such lands should be taxed by the same rule as lands directly benefited and made valuable by the levee system. The legislature cannot be presumed to have made the general assessment roll of the county applicable to this tax, in the absence of an express enactment, because the lands above overflow and but indirectly benefited by the levee system are more valuable than front lands without levees, and are for general purposes assessed at their true value (ad valorem), which is much higher than lands which lie on or near the river front and would be protected by levees, and made valuable by a complete levee system. If, then, the legislature intended the rule of valuation to be in proportion to the benefit, no provision is made for such assessment in the act. If, on the other hand, the legislature intended that the assessment for general purposes should be the rule, the act is inoperative and cannot be enforced.

Section 16 of said act reads: "The taxes, when levied, shall constitute a lien and shall be collected, and payment enforced, in the same manner as taxes for state and county purposes." This act is but a shadow-- without the substance--of the act for levee purposes, approved January 7, 1857, which contains all the requisities of a law granting the power to tax for local purposes, the assessment, levy and collection, including the forfeiture for delinquent lands, and the power lodged in the proper tribunals and officers to execute the law, which was held constitutional in Mc. Gehee v. Mathis, 21 Ark. 45. It is the duty of the legislature to prescribe the rules on which taxation is to be apportioned.

In the delegation of powers to tax, by the legislature, nothing is left to intendment or implication. The word "lien," in section 16, can have no effect unless there exists a debt or an obligation in favor of some one authorized to hold a lien. The state nor county can have a lien, because all taxes for general purposes are paid, as alleged by the complaint, and admitted by the demurrer. Suppose citizen "A" is delinquent for levee purposes, how will payment be enforced? ...