Keel v. Board of Directors

• Decision Date: 23 July 1894
• Citation: 27 S.W. 590
• Parties: KEEL et al. v. BOARD OF DIRECTORS OF ST. FRANCIS LEVEE DIST. et al. CARSON et al. v. SAME.
• Court: Arkansas Supreme Court

Page 590

27 S.W. 590

KEEL et al. v. BOARD OF DIRECTORS OF ST. FRANCIS LEVEE DIST. et al.

CARSON et al. v. SAME.

Supreme Court of Arkansas.

July 23, 1894.

Appeal from circuit court, Crittenden county.

Appeal from circuit court, Craighead county; James E. Riddick, Judge.

Actions by Samuel Keel and others and by Charles Carson and others against the board of directors of St. Francis levee district and others to enjoin defendants from collecting a tax levy. Demurrers to the bills were sustained, and plaintiffs appeal. Affirmed.

John B. Jones, H. G. Chambers, J. C. Hawthorne, and Balch & Balch, for appellants. S. R. Cockrill and James P. Brown, for appellees.

BUNN, C. J.

The appellants filed their bill in the Crittenden circuit court, seeking to enjoin the appellee the board of levee directors of St. Francis levee district from the collection of a tax levied by appellee for the purpose of constructing a levee on the west side of the Mississippi river, within the defined boundaries of the district, and as provided in Act Feb. 15, 1893, entitled "An act to lay off and establish that part of the St. Francis basin lying within the state of Arkansas into a levee district, and for protecting and maintaining the same and to incorporate a board of levee directors for said district and for other purposes." There are also amendatory acts, — March 21, 1893, and March 29, 1893. Neither the original act of February 15, 1893, nor the one of March 29, 1893, was signed by the governor, but went into effect by reason of their having remained with the governor five days, the general assembly being in session. In the court below the bill was dismissed on demurrer, and the plaintiffs appealed to this court.

The first section of the original act, as amended by the act of March 21, 1893, creates a levee district, with definite boundaries, and comprises, as the act says, a part of the St. Francis basin. Within the boundaries are included lands in eight counties. The second section, as amended by the act of March 21st, appoints, by name, three citizens of each of the eight counties levee directors for the counties, respectively, and provides that their terms shall be one, two, and three years, respectively, in the order in which they are named, and until their successors are appointed and qualified. This section, as amended, further provides: "The directors herein named and their successors in office shall constitute, and are hereby declared to be, a body politic and corporate by the name and style of the Board of Directors of the St. Francis Levee District, and by that name may sue and be sued, plead and be impleaded, and have perpetual succession for the purposes hereinafter designated. They may have a common seal and may make such by-laws and regulations, from time to time, as they may deem proper, not inconsistent with this charter and the laws of this state, for the purpose of carrying into effect the objects of their incorporation; they may appoint all officers and agents which they may deem necessary and suitable in the conduct of the business of said corporation and may do all other acts and things not inconsistent with the laws of this state which may be proper to carry into effect the provisions and objects of this act." The third section provides that the governor of the state shall appoint the successors of these directors, and fill vacancies. The fourth section makes it the duty of said board of levee directors to levee the St. Francis front in this state, with further provisions in detail as to the employment of necessary agents, and to determine the crown, height, slope, grade, etc., of the levee. The fifth section gives the board of levee directors the power, and makes it their duty, "to assess and levy, annually, a tax not exceeding 5 per cent. of the increased value or betterment estimated to accrue from the protection given against floods from the Mississippi river by said levee on all lands within said levee district," and provides for the call of a meeting of landowners in the respective counties, at which meeting a proposition to levy said annual assessment shall be submitted to them, and also provides that if a majority of the landowners are present at said meeting, in person or by proxy, and two-thirds of these shall vote for such assessment, it then becomes the duty of the board of directors to levy the tax. This section further contains provisions in detail concerning the appointment of election clerks by the directors, the oath to be taken by the clerks, and the making of the returns of the election to the levee board, a canvassing of the vote by the president and treasurer, and a declaration of the result. It has further provisions with reference to the annual levy of the tax, so long as necessary to effect the object of the act, without any further vote being taken. The sixth section declares said board of levee directors to be the legal successor of the levee board of St. Francis levee district, and entitled to its books and papers, and provides that said board shall organize by electing a president, secretary, treasurer, and chief engineer, prescribe their duties, and fix their salaries. Sections 7 to 14, inclusive, contain provisions for the appointment by the board of assessors and collectors in each county; the duties of such assessors and collectors; fixes the time for annual meeting of the board; duties of the chief engineer; defines the character of lien created by the levy of taxes, and provides for its enforcement in the chancery court of the county where the lands lie; provides for a penalty to attach upon delinquency, and that at sales for taxes the lands shall be bought in by the levee board, if not otherwise sold; that suits shall be in the name of the St. Francis levee district; and that the several collectors shall make annual settlement with the treasurer of the board of levee directors. The remaining 10 sections of the original act provide for giving notice for the letting of the work; for the receipt of sealed proposals; the contracting; for the giving of a bond by the treasurer; for a per diem of five dollars to directors while actually engaged; for acquiring right of way, when not gratuitously given; for keeping the levee in repair after it is constructed; for joining with the levee system of the state of Missouri; and for issuing evidences of indebtedness.

The act of March 29, 1893, by its first section, donates to the St. Francis levee district all lands of the state within its boundaries, except sixteenth sections, and all that the state may acquire therein through forfeitures for taxes within the five years then next ensuing. The second section provides for the sale or mortgage of these lands by the board of levee directors, and execution of deeds by the president in the name of the corporation. The third section exempts the lands so donated from taxation for five years. And the fourth section provides that the district may confirm tax titles, the same as individuals, "providing the president of said levee board shall make a bond to the governor payable to the state of Arkansas in the sum of $50,000, conditioned upon the faithful and honest appropriation of the aforesaid lands to the building and maintaining of the levee of said district."

There are several cases on appeal to this court against the appellee board, all involving substantially the same questions, and the decision in the one case will apply to all of them.

The constitutionality of the act of the general assembly organizing the St. Francis levee district, which went into effect by operation of law on the 15th February, 1893, is called in question, and two or more constitutional provisions are alleged by appellants to have been disregarded and violated in the passage of the act. This of itself suggests the very great importance of this litigation, but a brief reference to general principles involved will serve to emphasize the importance of the subject, and may throw light on the real merits of the discussion.

The act, if it has any authoritative basis at all, is an expression of the highest governmental power; and the legislature — the mouthpiece and active force of the state government — has expressed no more in the act than is possessed by the state government. Whatever, therefore, of want of power there is in the act to accomplish the work intended marks also a want of power in the state government. The state government is not one of merely delegated powers, having at every step to account for its actions, and to show its authority for anything it may undertake to do. On the contrary, it is primarily sovereign in character, and all who would question its exercise of power in any direction must affirmatively show that it is restricted expressly in its own or the national constitution. Hence it is that every doubt arising in controversies of this kind, must be resolved in favor of the legislative enactment. Ex parte Reynolds, 52 Ark. 339, 12 S. W. 570; Wilkins v. State (Ind. Sup.) 16 N. E. 193; Hedderich v. State, 101 Ind. 564, 1 N. E. 47; Cooley, Const. Lim. (5th Ed.) §§ 197, 201; Neal v. Shinn, 49 Ark. 231. 4 S. W. 771; Vance v. Austell, 45 Ark. 400; Leep v. Railway Co. (Ark.) 25 S. W. 75; Railroad Co. v. Riblet, 66 Pa. St. 164-169; Com. v. Moore, 25 Grat. 951.

The contention of appellants that this act of the legislative department is in violation of the spirit of the constitution of our free government, — is subversive of the right of local self-government (the great boast of all the Anglo-Saxon race), — does honor to the head and heart of their learned counsel, who so eloquently present the phase of the question. The doctrine of local self-government must ever remain the political faith of every free people, and the expression of that sentiment should ever be a potent sound in every legislative hall. But this is dangerous ground for the courts to get upon. What may be local self-government, what...