Lee Wilson & Company v. William R. Compton Bond & Mortgage Company

• Court: Arkansas Supreme Court
• Writing for the Court: FRAUENTHAL, J.
• Citation: Lee Wilson & Company v. William R. Compton Bond & Mortgage Company, 146 S.W. 110, 103 Ark. 452 (Ark. 1912)
• Decision Date: 01 April 1912
• Parties: LEE WILSON & COMPANY v. WILLIAM R. COMPTON BOND & MORTGAGE COMPANY

146 S.W. 110

103 Ark. 452

LEE WILSON & COMPANY v. WILLIAM R. COMPTON BOND & MORTGAGE COMPANY

Supreme Court of Arkansas

April 1, 1912

Appeal from Mississippi Chancery Court, Osceola District; Charles D Frierson, Chancellor; affirmed.

Decree affirmed.

D. F Taylor, for appellant.

1. The issuance of bonds in a proceeding of this kind is without constitutional sanction. Art. 12, sec. 5, Const.; 33 Ark 497.

2. The drainage law of 1909, as amended in 1911, authorized the organization of a drainage district including lands that will "be benefited by the proposed system of drainage." The act authorizes the organization of a drainage district merely for the benefit of private individuals, as there is nothing in the act to show that it is for the public or general welfare and use. Acts 1909, p. 831; Acts 1911, p 194; 57 N.E. 308.

3. The notice provided by the act for informing the land owners of the filing of the engineer's report, the basis of the creation of the district, and the notice provided for informing them of the filing of the report of the commissioners including the schedule of assessments, is insufficient, and amounts to depriving the owners of due process of law. Acts 1911, p. 194, § 1; Acts 1909, p. 837, § 7; 1 Page & Jones, 141.

4. The published notice of the assessments does not contain a description of each tract of land and town lot affected. The descriptions are fatally inadequate and defective, and not in compliance with the statute. Acts 1909, p. 837, § 7; 2 Page & Jones, 755.

5. Since the engineer's report was filed on April 20, 1911, and the first notice thereof was published the next day, and the act under which it was published was not approved by the Governor until April 28, 1911, there was no authority in law for the publication. Acts 1911, p. 200.

The second order made on April 28, the day the act was approved, resetting the hearing for May 13, 1911, was not entered of record until January, 1912. This was fatal to the proceedings.

6. The creation of a drainage district is purely a legislative function, and the Legislature can not delegate its power to the county court. 20 Johns. (N. Y.) 269; 7 Id. 541; 6 Cowen (N. Y.) 571; 11 Wend. (N. Y.) 154; 2 Hill (N. Y.) 14.

7. Where it is sought to assess a tract of land outside of the boundaries of the district established, special notice is required by law to be published, and a special hearing given to the owner to determine whether or not his land will be benefited. The assessment of outside tract in this case was void, and should be enjoined. Acts 1909, p. 836.

8. The assessment in this proceeding of appellant's land already included in and assessed for benefits in another drainage district is void. There is a limit to the benefits that any tract of land can derive from drainage, and the presumption is that this tract derived all the benefits it could receive from drainage by the construction of the ditches in district No. 8. 1 Page & Jones, 248.

J. T. Coston and Rose, Hemingway, Cantrell & Loughborough, for appellee.

1. On the question of double assessment because a tract of land already embraced in another district was also assessed in this, it is sufficient to say that due notice of the assessment was given and an opportunity to be heard, and appellant had the right to appeal from the court's finding. Appellant has had his day in court. Acts 1909, p. 837. Moreover, there is no constitutional objection to assessing the same tract in two districts if it derives benefits from both. 1 Page & Jones, 638; 123 S.W. 834.

2. The assessment of the tract of land not included in the district when first established was authorized by law, and the notice thereof was sufficient. Acts 1909, p. 836; 1 Page & Jones, 637; 21 Pa. 828.

3. The description of the lands and lots was sufficient. Acts 1909, p. 837; 1 Page & Jones, 551; 2 Id. 874; 70 S.W. 144; 4 N.E. 628; 69 P. 96; 73 N.W. 801; 80 Pa. 127.

4. There is no merit in the contention that the notice required of the filing of the engineers' report and of the filing of the assessments is insufficient and amounts to a deprivation of due process of law. 1 Page & Jones, 133; Id, 141; 59 Ark. 535.

5. The issuance of the drainage district bonds is in no sense a violation of the constitutional provision prohibiting a county from lending its credit to any corporation, etc The county does not promise to pay, does not become responsible in any sense for the assessment or bonds, and, in case of default in assessments or repudiation by the district of the bonds, nothing could be collected from the county. 59 Ark. 534; 42 Ark. 162; 69 Ark. 68; 1 Page & Jones, 209; 1 So. 877; 28 P. 274.

6. It is true that the drainage law does not contain an express requirement that a drainage district may be organized under it only when such organization will be of public use, for the public welfare, health or utility; nevertheless the court expressly found that this district will improve the public health, be of public utility and serve a public purpose. Moreover, the court will take judicial notice that the drainage and reclamation of large bodies of wet land will effect these ends. 2 Page & Jones, 1317; 1 Id. 335, 336, 338; 59 Ark. 532; 124 S.W. 776; 134 S.W. 621; 137 S.W. 251; 110 S.W. 1055; 64 Ark. 555.

6. The court had the right, independently of the statute, to make an order setting down the report of the commissioners and to prescribe the kind of notice to be given. Acts 1909, p. 831. However, a second order was made on April 28, 1911, the day the act was approved, and on May 5, 1911, the notice thereof was again published. This met the requirements of the statute. 61 Ky. 53; 72 Mass. 316; 2 O. Dec. 624; 39 O. St. 573; 42 Ala. 641; 101 Ala. 593. Ample provision is made for the land owner to be heard on the amount of his assessment of benefit; and, since he is also given the right to appeal to the circuit court where the case will be tried de novo, the proceedings would not be vitiated if notice was not given. Acts 1909, pp. 836, 837; 1 Page & Jones, 134; Id. 125; 184 U.S. 69; Id. 440; 149 U.S. 41; 159 U.S. 537; 112 F. 589.

OPINION

FRAUENTHAL, J.

This is an action instituted by certain owners of land situated in a drainage district seeking to enjoin the commissioners thereof from enforcing and collecting the assessment of alleged benefits on their lands and from issuing any bonds in the name of said district. The drainage district was established by an order of the county court of Mississippi County under and in pursuance of an act of the General Assembly approved May 27, 1909, entitled, "An act to provide for the creation of drainage districts in this State," as amended by an act of the General Assembly approved April 28, 1911, (Acts 1909, p. 829, Acts 1911, p 193); and is known as Grassy Lake and Tyronza Drainage District No. 9.

The appellants by this action attack the constitutionality of said acts and the legality and regularity of the proceedings of the county court in establishing said drainage district. In their complaint they make, in substance, the following allegations: In October, 1910, a petition was filed in said county court, signed by the requisite number of land owners asking for the appointment of an engineer to make survey of the lands in the proposed drainage district and to report the territory that would be benefited by the establishment thereof. This petition was filed in pursuance of said act of the Legislature, approved May 27, 1909. Thereupon the county court appointed a civil engineer, who made a survey of the territory embraced in the proposed drainage district, and thereafter made a report describing its limits and the various tracts of land therein that would be benefited by the establishment of said drainage district and the construction of a drainage system therein. In said report he stated that "the proposed drainage system will drain, reclaim, improve and benefit the territory included within the boundaries described." The district thus described embraced a large territory, containing about 193,000 acres. Thereupon the county court on April 20, 1911, made an order setting the hearing of said report on May 13, 1911, and directed that notice thereof should be published in manner prescribed by said original act. On April 28, 1911, the county court made another order again setting the hearing of said report for May 13, 1911, and directing that notice thereof be given for the time and in the manner prescribed by said amended act. Notice of said hearing was published for the time and in the manner prescribed by said amended act, and on May 13, 1911, the county court, upon investigation, found that the survey of said territory proposed to be established into the drainage district, the description of the limits thereof and the lands included therein were correct. It also found that "the organization of said drainage district will be for the general public welfare, use and utility, and will improve and benefit the public health." It thereupon made an order organizing said territory into a drainage district and establishing it as Grassy Lake and Tyronza Drainage District No. 9. It also appointed three commissioners, as provided for in said original act. The record of the order did not contain the finding that the establishment of the drainage district would be for the public benefit and would benefit the public health, and in certain orders of said court the drainage district was referred to as Drainage District No. 9. Subsequently, in January, 1912, at a regular session thereof, the county court made an order nunc pro tunc correcting the said order of May 13, 1911, so as to incorporate the above finding, which was actually made by it on May 13 when making the order establishing the...