Linwood & Auburn Levee District v. State, 42

• Court: Supreme Court of Arkansas
• Writing for the Court: MCCULLOCH, C. J.
• Citation: 181 S.W. 892,121 Ark. 489
• Parties: LINWOOD & AUBURN LEVEE DISTRICT v. STATE
• Docket Number: 42
• Decision Date: 13 December 1915

181 S.W. 892

121 Ark. 489

LINWOOD & AUBURN LEVEE DISTRICT
v.
STATE

No. 42

Supreme Court of Arkansas

December 13, 1915

Appeal from Lincoln Circuit Court; W. B. Sorrells, Special Judge; affirmed.

Judgment affirmed.

J. Bernhardt and T. D. Crawford, for appellant.

1. This is not an action against the State within the prohibition of article 5, section 20, of the State Constitution. The provision that "the State of Arkansas shall never be made defendant in any of her courts" is but a declaration of the policy of all States, where no statute expressly authorizes the sovereign to be sued. Its meaning is that claims against the State must be passed upon by the Legislature, and their payment provided for by appropriations made by that body. The framers of the Constitution had in mind only ordinary actions at law or suits in equity in which a judgment could the entered against the State or costs be incurred by it. This proceeding is held to be a special one and not an "action" within the meaning of the statute. 2 Lewis, Eminent Domain, § 512, cases cited; 91 Ind. 451, 46 Am. Rep. 613; 79 Ark. 154. There is an obvious distinction between ordinary actions and condemnation proceedings. 204 U.S. 576; 164 F. 745.

The Constitution had no reference to condemnation proceedings. It was never intended that public improvements should never be made across State lands without awaiting legislative action.

To hold that the board of inspectors may not proceed with this necessary improvement because the levee is in part to be located on the State's land is in effect taking from the board the power to protect the State farm as well as the other lands in the district from overflow, a duty delegated to that board by the Legislature. There is nothing in the Constitution or statute to prevent the board, in discharging this duty, from entering upon and using a portion of the State's land. There is no reason why damages to the State's land should not be ascertained and the award paid to the State, as in case of other land owners. Randolph, Em. Dom., § 297; 3 Ind. 421; 88 S.W. 436.

This court has frequently held that statutory proceedings to condemn land for right-of-way or other public purpose is special, to ascertain the compensation to be paid the owner for the land to be taken, and that no provision is made for an issue upon the right to condemn. 99 Ark. 63, and cases cited. If it is desired to test the authority of the petitioner to condemn, or the question whether the use is in fact a public one, these questions must be raised by injunction. 104 Ark. 344; 121 F. 276; 43 Ark. 120; 76 Ark. 239.

2. The rule which forbids the condemnation of land for a public use which is already devoted to a public use, is limited to the cases where the two uses are inconsistent. 102 Ark. 492. But there is no inconsistency between the use of this land for farming purposes and & use of part of it to protect the remainder from overflow. The levee district was in existence when the State purchased the farm, and the Legislature has repeatedly recognized the boundaries of the district. Acts 1893, chap. 67, § 1; Acts 1905, p. 480.

3. In this case, under the statutes relating to the district, it is authorized to condemn land of the State within the district. It is true that the sovereign is not bound by a general statute unless expressly mentioned or necessarily included by implication. 66 Ark. 48, 52. This rule is frequently applied in regard to the statute of limitations, but this principle has no application where the State descends into the arena of common business in concert or competition with her citizens, in which case she goes divested of her sovereignty. 45 Ark. 81; 56 Ark. 491; 57 Ark. 475; 7 How. 194. In this case the State has divested herself of her sovereignty by going into the business of farming. It is immaterial why the State entered into the business, whether as an incident to handling convicts or not; the material fact is that she did go into the business in competition with her citizens. Having entered into the arena of business, renders the State liable to the application of general statutes.

Moreover, the special statutes applicable to this district impliedly, if not expressly, authorize the use of the State's land for levee purposes. Acts 1893, p. 105; Acts 1905, p. 480; 3 Ind. 421; 88 S.W. 436; 164 S.W. 509; 48 N.E. 485; 116 Ill. 449, 6 N.E. 49; 195 Ill. 271; 73 N.E. 811; 141 N.C. 128; 23 Utah 474; 64 S.W. 585; 97 Ark. 86; 69 Ark. 104.

Wallace Davis, Attorney General, and Jno. P. Streepey, Assistant, for appellee.

1. This is an action against the State within the meaning of the Constitution, article 5, section 19.

It is clear that the Legislature intended a condemnation proceeding by levee districts to be a judicial proceeding, and, we think, this court has clearly recognized such a proceeding to be a civil action. Act 5, Acts 1909; Act 53, Acts 1905, § 3; Castle's Supplement, p. 250; 105 Ark. 5, 10. See also 125 N.W. 903; 26 N. W. (Ia.) 40, 41; 91 S.Ct. (U.S.) 367, 378; 124 U.S. 197, 200; 71 N. E. (Ill.) 334, 335; 83 S. E. (Ga) 135, 136; 91 Ark. 531, 535; 98 Ark. 525, 529.

2. Where land is being used by the State, it can not by eminent domain be devoted to another use without the express consent of the sovereign. Supra; 39 Ill.App. 610; 25 N. W. (Minn.) 345; 73 Hun, 256, 261; 53 Ga. 120, 124; 96 N.E. 238; 144 N. W. (Minn.) 960; 138 S.W. 575, 580; 79 A. 440, 442; 110 N. W. (Neb.) 629, note.

3. The use which appellant seeks to make of the farm is inconsistent with its present use. 43 Ill. 303.

4. The statute relating to this district does not authorize it to condemn lands of the State. There is no merit in the contention that the State has stepped down into the arena of business by conducting a farm in competition with free labor. She operates the farm not for revenue, but for the maintenance of the hundreds of convicts in custody, who must be fed and clothed at her expense.

OPINION [181 S.W. 893]

[121 Ark. 492] MCCULLOCH, C. J.

Appellant is a levee district created by a special act of the Legislature at the session of the year 1893. As originally created, the district was composed of four townships in Lincoln County and a portion of a fifth one, and also a certain portion of Jefferson County. An amendatory statute in 1905 added two townships in Desha County. The purpose of the district is to construct and maintain a levee along the Arkansas River front to prevent inundation of lands in the district from the waters of that river. The statute authorized the election of a board of levee inspectors which is constituted the governing board of the district. The board of inspectors is given authority to assess the lands in the district for the purpose of raising funds to pay the cost of constructing the levee and maintaining it. Authority is also given to employ...