Hicks v. Knight

• Court: Arkansas Supreme Court
• Writing for the Court: HUMPHREYS, J.
• Citation: Hicks v. Knight, 218 S.W. 830, 142 Ark. 286 (Ark. 1920)
• Decision Date: 16 February 1920
• Docket Number: 190
• Parties: HICKS v. KNIGHT

218 S.W. 830

142 Ark. 286

HICKS v. KNIGHT

No. 190

Supreme Court of Arkansas

February 16, 1920

Appeal from Greene Chancery Court; Archer Wheatley, Chancellor reversed.

Judgment reversed and cause remanded. Motion for rehearing overruled.

Allen D. Stewart, for appellants.

1. The complaint states facts sufficient to constitute a cause of action, and it was error to sustain the demurrer. Kirby's Digest, § 623; 1 Kinney on Irrigation and Water Rights (2 Ed.), par. 319.

2. Courts may grant injunctions in all cases of illegal or unauthorized taxation or assessments. Kirby's Digest § 3966; 30 Ark. 101; 59 Id. 344, 358; 22 Cyc 767; 27 Id. 1270; 37 Id. 1251; 33 Ark. 441.

Special assessments for local improvements can only be justified on the ground of peculiar and special benefits, and where they are exceeded the assessment is unlawful and void. 119 Ark. 188; 86 Id. 1-8; 177 S.W. 880; 109 Id. 528; 172 U.S. 269; 181 Id. 324, 371, 396. The complaint alleges and the demurrer admits that the lands are assessed and taxed in five other districts, and that the assessments are excessive and confiscatory and squarely in violation of article 2, section 22, Constitution.

2. The proper notice was not given nor opportunity offered to be heard. 12 C. J. 1260-1; 50 Hun. 347-350; 237 U.S. 413; 74 N.Y. 183; 203 U.S. 323; 207 Id. 127; 122 Iowa 94; 162 Cal. 14; 193 U.S. 79. Notice was not given as required by special act 413 and the levees will not benefit appellant's lands at all but will dam up the waters and injure them.

Jason L. Light and Huddleston, Fuhr & Futrell, for appellees.

The contentions of appellants that the improvement is not within the scope of the act, that proper notice was not given, and that the assessments are confiscatory, are not well taken. 20 So. Rep. 780; 39 S.E. 752; 71 S.W. 366-7; 62 F. 129, 131-3; 36 N.E. 159; 56 N.W. 946; 84 Wis. 438; 54 N.W. 793-5. See also 83 Ark. 54.

HUMPHREYS, J. HUMPHREYS, J., on rehearing.

OPINION

HUMPHREYS, J.

This suit was instituted by petition of appellants against appellees, as commissioners of Greene-Craighead Drainage District No. 1, in the Greene Chancery Court, to enjoin them from issuing bonds, or other obligations, attempting to fix any liens on any lands in the district, and from awarding any contract or contracts for the construction of levees, drains or bridges in said district.

The bill, in addition to others, contained the following allegations: That an attempt was made to create the drainage district in question by Act No. 413 of the Acts of the General Assembly of the State of Arkansas for the year 1919; that, according to the plans and estimates of the engineers, the estimated cost for caring for the water, which descends upon the surface of the land from falling rains and snows, was approximately $85,000; that, in addition to these plans and specifications, there was incorporated in the engineer's plans and specifications a system of levees along the St. Francis River, to prevent overflows therefrom, the cost of which was estimated at approximately $200,000; that appellee took a total sum of $328,190, representing an approximate cost of the total improvement, including the levee scheme, as a basis for assessing benefits against the lands in the district. The bill is quite long, and the additional allegations are fairly summarized in the brief of appellant, as follows:

"1. That Special Act No. 413 confers power only to effect reclamation against surface water and not against channel water of the St. Francis River; that $200,000 of the assessments are appropriated to build levees to confine the channel waters of the river within the channel; and that said expenditure of $200,000 for said purpose is unauthorized and beyond the scope of said special act.

"2. That said levees will not benefit appellants' lands, because (a) the only reason for their construction is that it is the opinion of the engineers that when the Mingo Swamp is drained in Missouri that the water level in the St. Francis River will be raised to such height as to require said levees; but that in fact the drainage of Mingo Swamp will not raise the water level at all, and that said levees will be wholly unnecessary; (b) even if the draining of the Mingo Swamp should raise the water level in the river the construction of the proposed levees would not benefit, but would injure, appellant's lands because when constructed these proposed levees would make a dam which would hold all surface water upon their lands and would form a lake which would inundate their said lands--even if said levees should protect their lands from the channel waters of the river they would inundate their said lands by collecting the surface water and throwing it back upon said lands.

"3. That these lands are in five other improvement districts besides that involved in this case; that practically all said lands are mortgaged for one-half their value; that the aggregate of these fixed charges in many instances greatly exceeds the value of these lands; and that the annual income from these assessed lands will not be sufficient to pay the annual interest, annual assessments in improvement districts and annual general taxes, thus working a complete and total confiscation of the same.

"4. That no notice of the making, equalization, readjustment of assessments and damages was even given appellants."

Appellee demurred to the bill for the alleged reason that it did not state sufficient facts to constitute a cause of action. The court sustained the demurrer and dismissed the bill for want of equity, from which an appeal has been duly prosecuted to this court.

It is insisted by appellants that Special Act No. 413, Acts of the General Assembly of 1919, did not confer power to construct levees along the St. Francis River so as to prevent its flood waters from overflowing the lands, in the district; that it was the purpose and intent of the act to authorize ditches levees, etc., for the purpose of caring for surface water only, or such waters as diffused themselves over the surface of the ground from falling rains or snows. We think it quite clear from a reading of the whole act that no intention was evinced by the Legislature to authorize the construction of an expensive levee system along the St. Francis River so as to...