Johnson v. Kersh Lake Drainage Dist.

• Decision Date: 17 November 1939
• Docket Number: No. 4-5501.,4-5501.
• Citation: Johnson v. Kersh Lake Drainage Dist., 132 S.W.2d 658 (Ark. 1939)
• Parties: JOHNSON v. KERSH LAKE DRAINAGE DIST.
• Court: Arkansas Supreme Court

132 S.W.2d 658

JOHNSON v.KERSH LAKE DRAINAGE DIST.

No. 4-5501.

Supreme Court of Arkansas.

November 17, 1939.

Dissenting opinion.

For majority opinion, see131 S.W.2d 620.

FRANK G. SMITH, Justice (dissenting).

The majority opinion discovers a new method whereby old debts may be discharged without payment, even in cases where there is no question of limitations in favor of the debtor, or imputation of laches against the creditor.I, therefore, dissent.

I think it unimportant whether there was collusion in the rendition of the decree which is pleaded as res adjudicata.It suffices to say that the majority opinion opens wide the door for such collusion and affords easy opportunity to defeat the collection of substantial parts of an improvement district's obligations.

Of the innumerable improvement districts, of various kinds, which have been organized throughout the state it is doubtful whether in any instance the property owners were required to discharge the betterments assessed against their lands in a single payment.Certainly the rule is to distribute these payments of betterments over a period of years, and when this is done numerous cases have held that interest may be charged upon these betterments.These cases are all to the effect that the interest charge does not operate to increase the betterments, but is a charge made for the indulgence of extension of time in paying the betterments.Among other cases so holding are the following: Oliver v. Whittaker, 122 Ark. 291, 183 S. W. 201;Pfeiffer v. Bertig, 141 Ark. 531, 217 S.W. 791;Skillern v. White River Levee District, 139 Ark. 4, 212 S.W. 90;Massey v. Arkansas & Missouri Highway District, 163 Ark. 63, 259 S.W. 387;Griffin v. Little Red River Levee District, 157 Ark. 590, 249 S.W. 16;Faulkner Lake Drainage District v. Williams, 169 Ark. 592, 276 S.W. 604;Chicago Mill & Lbr. Co. v. Drainage District No. 17, 172 Ark. 1059, 291 S.W. 810.

Act 467 of the General Acts of 1919(page 343) provides that: "Where assessments of benefits have been made in drainage districts organized either under general or special acts, the property owner shall have the right to pay such assessments in full within sixty days after the passage of this Act, but if he does not avail himself of this privilege, the assessment of benefits shall bear interest at the rate of six (6%) per cent per annum, and shall be payable only in installments as levied.The interest need not be computed until necessary to be sure...