Johnson v. Kersh Lake Drainage Dist., 4-5501.

• Decision Date: 29 May 1939
• Docket Number: No. 4-5501.,4-5501.
• Citation: Johnson v. Kersh Lake Drainage Dist., 131 S.W.2d 620 (Ark. 1939)
• Parties: JOHNSON et al. v. KERSH LAKE DRAINAGE DIST.
• Court: Arkansas Supreme Court

131 S.W.2d 620

JOHNSON et al. v.KERSH LAKE DRAINAGE DIST.

No. 4-5501.

Supreme Court of Arkansas.

May 29, 1939.

Rehearing Denied October 2, 1939.

Appeal from Lincoln County Court; Harry T. Wooldridge, Chancellor.

Suit by the Kersh Lake Drainage District against Arthur J. Johnson and others, to collect delinquent assessments.From the decree, Arthur J. Johnson and others appeal.

Reversed, with instructions.

Arthur J. Johnson, of Star City, and Coleman & Riddick, of Little Rock, for appellants.

E. W. Brockman, of Pine Bluff, and Rose, Loughborough, Dobyns & House, of Little Rock, for appellee.

HOLT, Justice.

Appellants bring this appeal from the Lincoln Chancery Court.

The Kersh Lake Drainage District, embracing lands in Jefferson, Lincoln and Desha counties, was created by an order of the Circuit Court of Jefferson County on August 24, 1912 under Act 279, page 829, of 1909.Benefits were assessed against each tract of land in the district in the total sum of $272,782.12, payable in annual installments.A contract for the improvement was let, the work completed and certificates of indebtedness issued to the contractor in payment.

A. J. Johnson, one of the appellants, owned and still owns 160 acres of land in this district and the benefits to which were originally assessed at $1600.Prior to 1931he had paid installments of these tax benefits in the total sum of $1628.The other appellant landowners to this litigation paid the full amount of benefits originally assessed against their lands, but counsel have agreed that such appellants will abide the decision of this court with reference to the Johnson land as controlling as to these other appellants.

In 1931 the Commissioners of this district, acting upon the authority of Act 467, page 343, of 1919, made an additional assessment against the lands in question, such assessment being the interest on the original assessment as contemplated in the Act.This tax levied as additional assessment, on the Johnson land, amounted to $104.

A suit was then filed by Johnson in the Lincoln Chancery Court against the district in which he alleged that the limits of the benefits accruing to his 160 acres of land in the district amounted to $1600, and prayed that the additional assessment of benefits made under Act 467, supra, be annulled.On October 19, 1931, the court found the issues in favor of Johnson and held that all legally assessed benefits had been paid, annulled the additional assessment, and permanently enjoined the district from collecting any additional taxes on Johnson's land.From this judgment of the court no appeal was taken.

The other appellants here brought a similar suit against the district, praying for similar relief to that granted Johnson, which prayer the court granted on June 15, 1932, and from this judgment of the court no appeal was taken.

The State Bank & Trust Company of Wellston, Missouri, in 1935 filed a suit at law against the Kersh Lake Drainage District in the Federal Court for the Eastern District of Arkansas, in Little Rock, in which it sought to recover a judgment against the district on certain of its certificates of indebtedness which had been assigned to it by the contractor.In this cause the Federal District Court entered a judgment in favor of the trust company against the district for $54,655 and this judgment was subsequently affirmed by the Circuit Court of Appeals.Kersh Lake Drainage District v. State Bank & Trust Company, 8 Cir., 85 F.2d 643.

Thereafter the State Bank & Trust Company instituted suit in the Federal Court in Little Rock against the same Commissioners of this same district, joining the County Clerks and Sheriffs of Jefferson, Lincoln and Desha counties, asking for a mandatory injunction to compel the collection of a tax of 6½ per cent a year on the assessed benefits in the district to pay this judgment.The court issued the mandatory injunction as prayed for as follows: "It is, therefore, considered, ordered and decreed that a mandatory injunction issue requiring the defendant County Clerks, N. M. Ryall and M. D. Newton, to extend upon the taxbooks of their respective counties, a tax of 6½ per cent of benefits assessed against each tract of land, railroad, and tramroad in the district for each of the years 1936 and the following years until the whole of this decree has been satisfied.* * * It is further considered, ordered and decreed that the defendants, T. H. Free, Claude H. Holthoff and Emmett Warren, as Commissioners of said district, be required to institute suits for the collection of all delinquent taxes of said district, and to prosecute the same with due diligence to a conclusion, and to see that the delinquent lands are sold promptly under the decree of foreclosure, and that they be required to do all things necessary, as Commissioners of said district, to insure the prompt collection of the drainage taxes".This judgment of the court was affirmed by the Circuit Court of Appeals.Kersh Lake Drainage District v. State Bank & Trust Company, 8 Cir., 92 F. 2d 783.

In accordance with the provisions of this mandatory injunction the County Clerk of Lincoln County extended a tax of 6½ per cent on the original assessment of benefits of $1600 against Johnson's 160 acre tract in this county.Johnson refused to pay this tax and the assessment against his lands was returned delinquent.

The Kersh Lake Drainage District filed the present suit in the Lincoln Chancery Court pursuant to the order of the Federal Court to collect the delinquent tax against Johnson's land and the delinquent assessments against the other appellants to this litigation.In his answer Johnson alleged that the tax sought to be collected was void and set up as a complete bar the decree of the Lincoln Chancery Court rendered on October 19, 1931, supra, in the former suit brought by him against the district, pleading res judicata.He also alleged that his lands were not embraced within the terms of the mandatory injunction for the reason that the injunction directed the County Clerk to extend a tax on the assessed benefits in the district, and that there were no unpaid "assessed benefits" against his land.The other appellants here made similar allegations in their answer with respect to their lands and also pleaded the decree rendered by the Lincoln Chancery Court on June 15, 1932, in their favor, as res judicata.The Chancery Court overruled the defenses set up by these appellants, entered a decree for the taxes and ordered the lands sold to satisfy them.The trial court was of the opinion that it was precluded by the Federal Court's order from considering any of the defenses interposed by Johnson or the other appellants.

The decree of the Lincoln Chancery Court, heretofore referred to, in the cause in which appellantA. J. Johnson was plaintiff and Kersh Lake Drainage District was defendant, and rendered on October 19, 1931, recites, among other things, the following: "The court being advised as to the law and facts in the premises, finds that the plaintiff is the owner in fee of the SW¼ of Section 8, Township 9 South, Range 5 West; that said lands constitute a part of the Kersh Lake Drainage District of Jefferson, Lincoln and Desha counties, that said drainage district was organized by the judgment of the Jefferson Circuit Court on August 24, 1912, under ActNo. 279, page 829 of the Acts of 1909, and that said land was assessed benefits of $1600.00 by the assessors of said Kersh Lake Drainage District and said assessment of benefits was duly confirmed by the judgment of the Circuit Court of Jefferson County on February 3, 1913; that subsequent to the confirmation of the assessment of benefits, taxes were annually extended against plaintiff's said land, and from January 1, 1914, to and including the year 1929, payable in 1930, the plaintiff paid a tax in favor of Kersh Lake Drainage District and as a credit on the assessments of benefits made and confirmed against his land the total sum of $1628.00; that the defendant commissioners over the protest of the plaintiff extended a total and further tax of $104.00 for the year 1930, payable in 1931, in favor of the Kersh Lake Drainage District, and the plaintiff has refused to pay and the foregoing described lands have been certified by the collector of Lincoln County to the Chancery Court of Lincoln County as delinquent for said amount, and said commissioner is about to sell said land for said delinquency.

"The court further finds that upon the payment by the plaintiff of the total assessed benefits in favor of Kersh Lake Drainage District in the sum of $1600.00 against the SW¼ of Section 8, Township 9 South, Range 5 West, all of the lien, right or interest of the Kersh Lake Drainage District against said lands by virtue of the improvement made by the Board of Commissioners in and for the Kersh Lake Drainage District became duly paid and satisfied, and the Commissioners are without authority to extend further taxes against plaintiff's land collectible in the year 1931, or any other years.

"It is, therefore, considered, ordered and decreed that the lien of the Kersh Lake Drainage District against the SW¼ of Section 8, Township 9 South, Range 5 West, by virtue of its assessment of benefits in the sum of $1600.00 is fully satisfied and released; that the tax extended by the Commissioners for 1930, collectible in 1931, is without authority and void, and the clerk of this court shall satisfy the record of the delinquent lands returned to him in 1931 as far as SW¼ of Section 8, Township 9 South, Range 5 West, is concerned, and the defendant Commissioners are permanently...