Jonesboro, Lake City & Eastern Railroad Co. v. Board of Directors of St. Francis Levee District

• Decision Date: 22 October 1906
• Citation: 97 S.W. 281,80 Ark. 316
• Parties: JONESBORO, LAKE CITY & EASTERN RAILROAD COMPANY v. BOARD OF DIRECTORS OF ST. FRANCIS LEVEE DISTRICT
• Court: Arkansas Supreme Court

97 S.W. 281

80 Ark. 316

JONESBORO, LAKE CITY & EASTERN RAILROAD COMPANY v. BOARD OF DIRECTORS OF ST. FRANCIS LEVEE DISTRICT

Supreme Court of Arkansas

October 22, 1906

Appeal from Craighead Chancery Court; Edward D. Robertson Chancellor; affirmed.

Decree affirmed.

E. F Brown and Randolph & Randolph, for appellant.

1. The several acts of the Legislature in regard to the St. Francis Levee District are private acts, or local and special legislation under § 25, art. 5, Const., where a general law can not be made to answer the purpose. 59 Ark. 513, 529 530. The courts take judicial notice of them for the purpose of their local administration (19 Ark. 630; 23 Id 387), yet they are not public laws. 1 Vent. 175; 1 Kent, Com. *pp. 459, 460; 2 John. (N. Y.), 263; 8 Id. 520; 21 N.Y. 206; Sedg. St. & Const. Law, ch. 2, *pp. 30-36; Potter's Dwarris on Stat. ch. 2, P. 52-7; 71 Ark. 174; 1 Head, 77; Pom. Eq. Jur. § 849. This suit depends on these acts (Nos. 75 and 100, Acts 1893; act No. 71 of 1895 and No. 61 of 1903, etc.), and the complaint must show a substantial compliance with these acts. This it fails to do. Further proof fails to establish the material facts denied in the answer. The court erred in not dismissing the suit. Cooley on Tax. (1 Ed.), ch. 20, 416-418; 64 Ark. 108, 111. The complaint fails to show that a meeting of the landowners was held; that the five-mill tax was voted; directors and clerks sworn, returns made, canvassed and declared, etc., as required by the law. Acts 1893, § 7; Acts 1903, § 1, etc. All these must be alleged and proved, as they were denied. 28 Ark. 360; 64 Id. 108, 110, 111; 59 Id. 483; 48 Id. 151; 50 Id. 390; 60 Id. 369; 54 Id. 627; 51 Id. 34; 52 Id. 312; 2 Wall. 318; 16 How. 619; 139 U.S. 147; 34 F. 71; 59 Ark. 344. The copy of the record of the levee board was not sufficient, and was incompetent. 71 Ark. 174; 34 F. 701; 140 U.S. 634. The poll books and returns were the best evidence. 41 Ark. 111, 130 et seq.; 55 Id. 12; 71 Id. 174, etc. But the vote did not authorize a levy of more than two per cent. on the betterment of the lands protected, etc.; the vote was void. Cooley, Const. Lim. (6 Ed.), ch. 8, p. 268-9. The certificate of the officers could not prove the necessary facts. 8 Md. 352; 5 Ark. 116; 59 Id. 344, etc.

2. It was unlawful to assess all the railroads at the same value per mile, and to assess twenty-two miles of a railroad without designating which twenty-two miles. A section of a railroad can not be sold for taxes. Elliott, Roads & Streets (2 Ed.), § 597; 50 Ark. 484; 62 Id. 192; 88 S.W. 1005; Cooley, Tax. (1 Ed.), ch. 12, p. 283; 4 Hill (N. Y.), 92; 132 F. 668. The whole railroad must be sold or none. 68 Ark. 377; 109 F. 931, 938.

H. F. Roleson, for appellee.

1. No demurrer was filed, and no question raised as to the sufficiency of the complaint. It is too late to complain of the defect, the only question being whether the allegations are sustained by the testimony. 30 Ark. 25; 55 Id. 213. In 64 Ark. 108 a demurrer was filed. An answer waives all objections to a cause of action defectively stated. The complaint will be treated as amended to meet the proof. 59 Ark. 215; 67 Id. 426.

2. Every step necessary to the levy and collection of the tax was shown by the evidence. The act provides these facts shall be shown by the records and certificates of the officers of the board. This was done.

3. The act authorized an assessment of railroads per mile.

E. F. Brown and Randolph & Randolph, for appellee in reply.

A cause of action must be stated in the complaint. No demurrer or other pleading necessary. 41 Ark. 44; 68 Id. 263; 58 Id. 39; 66 Id. 113; 32 Id. 449; 38 Id. 401; 46 Id. 96.

OPINION

MCCULLOCH, J.

The Board of Directors of St. Francis Levee District brought this suit in chancery against the Jonesboro, Lake City & Eastern Railroad Company, and other delinquent taxpayers in Craighead County, to enforce payment of the levee tax due for the year 1903 on the land of the delinquent named as defendants in the complaint.

The appellant appeared in the suit and filed its answer contesting the right of appellee to collect the levee tax, and from a decree in favor of the plaintiff appeals to this court.

It is contended that appellee has not sufficiently alleged in the complaint, nor established by proof, its right to levy and collect the tax assessment claimed in the complaint. The particular defect in the complaint relied on by appellant seems to be that it contains no specific allegation that before the assessments were levied on lands in the district an election by landowners was held, pursuant to the act of the General Assembly creating the district, and that at such election a majority of the landowners was present and voted in favor of the project. The complaint does allege, in general terms, that the lands were duly assessed as provided by the act of the General Assembly, and that the taxes were duly extended. This was a statement--imperfect, perhaps --of a good cause of action. It was not questioned by demurrer or otherwise and was sufficient to warrant a decree. The statute authorizes the Board of Directors of St. Francis Levee District to maintain suits in the chancery courts of the respective counties in the district for the enforcement of delinquent levee taxes, and provides that such suits "shall be conducted in accordance with the practice and proceedings of chancery courts in this State except as herein otherwise provided." Now, the distinction is plain between a complaint which wholly fails to state a cause of action and one which imperfectly states a cause of action. The former will not, whether challenged by demurrer or not, authorize a judgment of the court, whereas the imperfections of the latter are waived unless taken advantage of by a motion to make more definite and certain. Choctaw, O. & G. Rd. Co. v. Doughty, 77 Ark. 1, 91 S.W. 768; Fordyce v. Merrill, 49 Ark. 277, 5 S.W. 329; Murrell v. Henry, 70 Ark. 161, 66 S.W. 647.

Counsel for appellant rely upon St. Louis, I. M. & So. Ry. Co. v. Dudgeon, 64 Ark. 108, 40 S.W. 786; but in that case the sufficiency of the complaint was challenged in apt time by demurrer, and the defendant rested upon the demurrer, without pleading over. The case at bar is different.

The only testimony introduced by appellee to show that the meeting of the landowners had been held, and that a majority of the landowners were present at the meetings in the several counties and voted in favor of assessing the lands annually, was the record of the board of directors containing a certificate or report of the president secretary and treasurer showing that they had canvassed the returns of said election, giving in detail the vote on the question in each county, and that a majority of the landowners had attended. The act creating the levee district provides that the return of this election shall be made to the secretary of the board, and that that officer, together with the president and treasurer, shall canvass the returns, declare the result and give notice thereof throughout the district. The certificate of these officers and the...