Drainage Dist. No. 18 v. McMeen

• Decision Date: 15 June 1931
• Docket Number: No. 34.,34.
• Citation: 39 S.W.2d 713
• Parties: DRAINAGE DIST. NO. 18 v. McMEEN et al.
• Court: Arkansas Supreme Court

39 S.W.2d 713

DRAINAGE DIST. NO. 18 v. McMEEN et al.

No. 34.

Supreme Court of Arkansas.

June 15, 1931.

Appeal from Circuit Court, Craighead County; G. E. Keck, Judge.

Suit by Drainage District No. 18 against C. A. McMeen and others. Judgment for defendants, and plaintiff appeals.

Reversed and remanded, with directions.

Baker & Gautney, Denver L. Dudley, and Joe C. Barrett, all of Jonesboro, for appellant.

E. L. Westbrooke, Eugene Sloan, John W. Gann, Jr., and Arthur L. Adams, all of Jonesboro, for appellees.

SMITH, J.

Drainage district No. 18 of Craighead county was organized by the county court of that county under the provisions of the statute known as the Alternative System of Drainage Districts, section 3607 et seq., Crawford & Moses' Digest, and the benefits assessed by the commissioners under the authority of that act were approved and confirmed by the county court in 1919.

After the construction of the improvement it was found that the lands in the lower or southern end of the district had not received the anticipated benefits, by reason of an insufficient outlet for the drainage, and the commissioners undertook to reassess the benefits of all the lands in the district to conform to this condition. No change in the sum total of the betterments was made, but the commissioners claim that they have equalized the betterments by the reassessment thereof to conform to the actual betterments received, rather than to the benefits anticipated at the time of the original assessment, which, according to subsequent developments, appear to be inaccurate and unequal.

The upper proprietors resisted the reassessment in both the county court and in the circuit court, where the cause was heard upon a stipulation, which recites the essential facts and from which we copy the following statements:

"It is stipulated and agreed by and between the said exceptors and objectors * * * and the Commissioners * * * that because of circumstances, developments and events not known to or in contemplation of the parties involved when the original assessment of benefits was made in said Drainage District No. 18, the plan of drainage as then contemplated could not be and was not carried out, nor were the actual benefits realized to certain of the lands which were contemplated as a result of the improvement when original assessment of benefits was made and filed. That among the particular incidents or developments not known, contemplated or anticipated at the time of such original assessment of benefits, was the construction of what is generally known and termed as the Lock and Dam in Poinsett county, Arkansas, as a part of the improvement constructed by Drainage District No. 7, of Poinsett County, Arkansas, adjacent to said Drainage District No. 18.

"That the construction of said lock and dam and other developments and conditions have made it impossible to supply the drainage to certain lands in the lower or south end of this District No. 18 which was in contemplation of parties when the original assessment was filed and confirmed. That certain of the lands so situated in said District have, for reasons above indicated, been frequently overflowed and at all times subject to overflow or damage by water to an extent which has hindered their clearing and development, or their cultivation, and in many instances has entirely prevented it. The reassessment of benefits as proposed to be made under Act No. 47, p. 94, of the Acts of 1929, undertakes to redistribute the burden of assessments in accordance with these conditions, and results in a shifting of assessment which substantially adds to the assessment of benefits upon some lands in the upper or north end of the District, raising it substantially above that fixed by the original assessment, and lowering it substantially on other lands in the lower or south end of the District."

The circuit court found that the district was without authority to make the reassessment, and sustained a demurrer to the petition therefor, and dismissed the reassessment proceeding, and this appeal is from that order and judgment.

It is conceded by the district that the reassessments cannot be made unless authority therefor is found elsewhere than in the alternative drainage district act under which district 18 was organized, as no such authority was conferred by that act. The protesting landowners insist that no such authority has been conferred, and they also contend that legislation conferring that authority would be unconstitutional if such legislation had been enacted.

We have before us only the question of the power of the district to reassess betterments, and the constitutionality of legislation authorizing the reassessment, if it exists.

In the chapter on reassessments and revisions in the excellent work on Improvement Districts in Arkansas by Sloan it is said at section 967, under the title, "Alternative System Drainage Districts," page 854, that "In 1927 the following power was conferred on alternative system drainage districts: `The commissioners of the districts aforesaid shall have the power to make a reassessment of the benefits not oftener than once a year, and such reassessment shall be made, advertised, and equalized as is provided for the original assessment of benefits; and all appeals of land owners objecting thereto must be taken and perfected within thirty days from the time of the action of the county court thereon.'"

The act referred to is Act No. 203 of the Acts of 1927, page 680, entitled "An Act in aid of Drainage Districts."

We need not consider whether that act confers the power of reassessment here sought to be exercised as the particular statute upon which the drainage district here especially relies, and under which it proceeded in making the reassessments, is Act No. 47 of the Acts of 1929 (vol. 1, Acts 1929, page 94). This act has the following title: "An Act Authorizing the Funding of Bond Indebtedness of any Levee or Drainage District and Authorizing Reassessment of Benefits in Such Districts."

It is insisted that this act should be construed with reference to its title, and that, when so construed, it should be interpreted as meaning that the reassessment which section 4 thereof contemplates is authorized and can only be made in connection with the funding or refunding of the bonded indebtedness of a levee or drainage district, and that authority to reassess is conferred only in such cases, and that inasmuch as it is not claimed that district 18 is attempting to refund its indebtedness the act does not apply.

Section 4 of Act No. 47 (page 96) reads as follows: "A reassessment of benefits may be made in any levee or drainage district in the State, whether created under general law or by special act of the Legislature, not oftener than once a year, and such reassessment shall be made by the commissioners or directors or assessors respectively of such district as was authorized for the original assessment therein, and such reassessment shall be made in the same form, after the same notice, hearing and rights of appeal as were provided for the original assessment of benefits in such district, and with the same time limitation on rights of appeal and suits attacking the assessment of benefits in such district as provided for the original assessment of benefits, and installments thereof levied, extended and collected at the same time, in the same manner, by the same officers, and with the same lien and penalties for delinquencies as were provided for the original assessment. If in any such levee or drainage district the original assessment of benefits was made by assessors, the board of directors or commissioners of such district shall have the power to fill any vacancies in the board of assessors; or, if in any such district the power of the board of assessors was exhausted on making the original assessment, the board of commissioners or directors of such district shall have the power to appoint a new board of assessors composed of the same number and with the same qualifications as the original board, such new board to have all powers to make the reassessments herein provided for as were conferred on the original board of assessors."

It appears that section 4 of the act, if read by itself, confers the authority to reassess in unmistakable terms, but that section, of course, must be read in connection with the act of which it is a part, and its title is not to be ignored in its interpretation.

In the case of State v. White, 170 Ark. 880, 281 S. W. 678, 679, it was said that "The language of the caption of a statute is not controlling, but it has some force in interpreting the meaning of the lawmakers when otherwise in doubt. * * *" Conway v. Summers, 176 Ark. 796, 4 S.W.(2d) 19; Huff v. Udey, 173 Ark. 464, 292 S. W. 693; Logan v. State, 150 Ark. 486, 234 S. W. 493; Nixon v. Allen, 150 Ark. 244, 234 S. W. 45; Oliver v. Southern Trust Co., 138 Ark. 381, 212 S. W. 77.

We have concluded that section 4 is not so limited by the title of the act, of which it is a part, as to be applicable only to those districts which are proposing to refund their indebtedness. The section is, of course, applicable to such districts, but we do not think it is limited to them. Section 4 provides that a reassessment of benefits may be...