Kersh Lake Drainage Dist. v. State Bank & Trust Co.

• Decision Date: 23 November 1937
• Docket Number: No. 10879.,10879.
• Citation: 92 F.2d 783
• Parties: KERSH LAKE DRAINAGE DIST OF JEFFERSON, LINCOLN, AND DESHA COUNTIES, ARK., et al. v. STATE BANK & TRUST CO. OF WELLSTON, MO.
• Court: U.S. Court of Appeals — Eighth Circuit

92 F.2d 783 (1937)

KERSH LAKE DRAINAGE DIST OF JEFFERSON, LINCOLN, AND DESHA COUNTIES, ARK., et al. v. STATE BANK & TRUST CO. OF WELLSTON, MO.

No. 10879.

Circuit Court of Appeals, Eighth Circuit.

November 23, 1937.

E. W. Brockman, of Pine Bluff, Ark., for appellants.

G. B. Rose, of Little Rock, Ark. (J. F. Loughborough, A. W. Dobyns, A. F. House, and J. W. Barron, all of Little Rock, Ark., on the brief), for appellee.

Before GARDNER, SANBORN, and THOMAS, Circuit Judges.

THOMAS, Circuit Judge.

This case is a sequel to the case of Kersh Lake Drainage District v. State Bank & Trust Company, 85 F.(2d) 643 (C. C.A.8), in which a judgment against the drainage district in the sum of $54,655 was affirmed. This suit was brought to secure a mandatory injunction requiring the proper county officers of the three counties in which the district lies and the commissioners of the district to extend upon the tax books and to collect drainage taxes at the rate of 6½ per cent. upon the assessed benefits in the district each year until an amount sufficient to pay the judgment with all costs has been raised. The judgment was upon certificates of indebtedness bearing 6 per cent. interest issued by the drainage district in payment of the costs of constructing drainage improvements. Lillian Iddings, the owner of like certificates of indebtedness on which there was an unpaid balance of $6,060, intervened and prayed for the same relief. After a trial upon the merits, at which the facts were stipulated, a decree granting the relief prayed was entered, and the drainage district appeals.

The appellant district was organized in the year 1912 under the general drainage laws of Arkansas of 1909 for the purpose of draining lands in Jefferson, Lincoln, and Desha counties. Pursuant to the statute then in effect, the lands within the district were assessed for benefits in the amount of $293,191.90, payable in installments over a period of years. This sum was arrived at under the law on the basis that the work of constructing the improvement would cost $135,000. The total sum included costs, interest, and incidentals. In 1915, a report of the commissioners of the district was approved, in which the cost was estimated to be $155,000; and in 1919 a second report was approved, in which it is shown that the actual cost was $181,500, for which amount certificates of indebtedness bearing 6 per cent. interest were issued. No subsequent order or judgment was entered modifying or increasing the assessment for benefits made in 1912.

The statute in effect when the district was organized (section 12 of Act 279 of 1909 (page 840) as amended by Act 136 of 1911 (page 109), section 3620 of Crawford & Moses' Digest) limited the taxpayers' liability to the amount of the assessed benefits without interest thereon. Notwithstanding this fact, there have already been levied and collected in the district taxes in the amount of $308,665.65, or 111.9 per cent. of the assessed benefits.

Upon this state of facts it is appellants' first contention that the assets out of which appellee's judgment may be paid are limited by the benefits assessed in 1912, and that since that limit has been reached and passed the lien upon the land has been discharged, and that no additional taxes may be imposed thereon.

It is appellee's contention that the deferred installments of the assessment for benefits bear interest at the rate of 6 per cent. a year, and that when such interest is computed the available assets are more than sufficient to satisfy its claim. It appears that the total of all taxes which have been levied and collected in the district is much less than the total of assessed benefits and interest upon unpaid installments since 1919.

The appellee, to support its proposition that the unpaid installments of assessed benefits bear interest, relies upon two amendments to the general drainage laws of 1909. The first of these amendments is Act 177, approved March 13, 1913 (section 3643, of Crawford & Moses' Digest), section 10 (page 746) of which provides:

"The amount of interest which will accrue on bonds issued by such districts and subdistricts shall be included and added to the tax, but the interest to accrue on account of the issuing of said bonds shall not be construed as a part of the cost of construction in determining whether or not the expenses and costs of making said improvements are or are not equal to or in excess of the benefits assessed.

"When assessments of benefits are made in drainage and other improvement districts, the landowners shall have the privilege of paying the same in full within thirty days after the assessment becomes final. But all such assessments shall be made payable in installments, so that not more than twenty-five per cent. shall be collectible in any one year against the wishes of the landowner and, in the event that any landowner avails himself of this indulgence, the deferred installments of the assessed benefits shall bear interest at the rate of six per cent. per annum, and shall be payable only in installments as levied. The levy of the assessment may be made by way of proportional amounts of the total assessed benefits, and interest need not be calculated until it is necessary to do so to avoid exceeding the total amount of benefits and interest."

The second amendment referred to is Act 467, approved March 28, 1919, p. 343 (section 3656, Crawford & Moses' Digest), which provides: "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 per cent. per annum, and shall be payable only in installments as levied. The interest need not be computed until necessary to be sure that the collections have not exceeded the total amount of benefits and interest; or the interest may be first collected."

The appellants contend that Act 177 and Act 467 have no application to the appellant district, because (1) they are not retroactive in effect; (2) to increase assessed benefits by adding interest violates the Constitutions of Arkansas and of the United States; and (3) an action to increase the assessment of benefits by adding interest is an action to collect a delinquent tax and is barred by the statute of limitations.

Counsel for the respective parties have presented their contentions in this court with ability and much learning, but we do not think it necessary to review all the cases cited in their briefs. Upon their face the statutes of 1913 and 1919 make assessment for benefits in drainage districts in Arkansas payable in interest-bearing installments, and provide that the "interest need not be calculated until it is necessary to do so to avoid exceeding the total amount of benefits and...