Memphis Land & Timber Company v. St. Francis Levee District

• Court: Arkansas Supreme Court
• Writing for the Court: BATTLE, J.
• Citation: Memphis Land & Timber Company v. St. Francis Levee District, 42 S.W. 763, 64 Ark. 258 (Ark. 1897)
• Decision Date: 03 July 1897
• Parties: MEMPHIS LAND & TIMBER COMPANY v. ST. FRANCIS LEVEE DISTRICT

42 S.W. 763

64 Ark. 258

MEMPHIS LAND & TIMBER COMPANY v. ST. FRANCIS LEVEE DISTRICT

Supreme Court of Arkansas

July 3, 1897

Appeal from St. Francis Circuit Court in Chancery H. N. HUTTON Judge.

Decree affirmed.

John B Jones, L. C. Balch, Morris M. Cohn and Norton & Prewett, for appellants.

The statute must be strictly construed; no presumption in favor of regularity of acts of board. The burden is on appellants to show same. 59 Ark. 344, 356; 58 Ark. 375; 24 N.J.Eq. 144; 3 Wall. 320; 50 Ark. 116, 123; 6 Wend. 486; 34 Vt. 156; 45 Vt. 202; Burroughs, Taxation, 149; 51 Ark. 34, 51; 10 F. 891; Mechem, Pub. Off. §§ 581, 511, 522, 627; Welty Assessments, §§ 221 and 223; 14 Gray, 440; 11 Vt 385, Sutherland, Stat. Const. 390 and 454; Beach, Pub. Corp. §§ 1166 and 1177; Endlich, Int. Stat. §§ 345, 358, 434; Cooley, Taxation, 523, 340, 339, 283, 286(note 1); 2 Dillon, Mun. Corp. § 769; 4 Hill, 86; 7 Cow. 88; 71 N.Y. 310; 3 Johns. Cas. 107; 2 Wash. 543; 27 P. 474; 8 Ark. 272; 37 Ark. 643; 50 N.Y. 502; 17 Wis. 442; 46 N.Y. 178; 69 N.Y. 75; 32 Ark. 131; Desty, Taxation, 615; Burroughs, Taxation 478; 3 Dutcher, 538; 30 S.W. 1131; 80 Tex. 195. taxes levied are void because statute was not complied with in respect to estimates, notices of election, number of judges of election, method of casting ballots and certifying same, notice by president of result, assessment and equalization of assessments, etc. Mansf. Dig. § 5205; 51 Ark. 34, 51; Cooley, Taxation, §§ 335, 257, 258, 661, 665; 3 Den. 594; Black, Tax Titles, § 275; 37 Wis. 77; 47 Wis. 513; 40 Wis. 315; 7 Nev. 315; 75 N.C. 474; 18 N.J.Eq. 518; 9 Wend. 244; 11 Wend. 155; 35 N.J. 497; 11 La. An. 229; 11 La. An. 338; 54 Ark. 643; 55 Ark. 218; 59 Ark. 483; 34 N.E. 431; 30 Mich. 24, 31; 4 Hill, 76; 50 N.Y. 502; 30 Mich. 24; 8 Md. 352; Cooley, Taxation, 787 and 788, 324, 341, 333, 421, 419, 607; 33 Ark. 716; 29 Ark. 340; 42 Ark. 100; 32 Ark. 131; 32 Ark. 496; 37 Wis. 254; 39 Ia. 172; 48 Ark. 282 and 283; 147 U.S. 190; Desty, Taxation, 430; 11 S.W. 402; 36 N. J. Law, 170; 77 N.Y. 523; 53 Cal. 44; 4 West Coast Rep. 585; 49 N.J.L. 311; 82 Ky. 265. The judges of election cannot solicit proxies, vote them, and pass on them. Brightly, Lead. Cas. Elections, 692; 1 Kent, Comm. 295, note. Board had no power to hold meeting in 1893; act February 15, 1893. Only about one third of appellant's land was benefited by the levee.

Cockrill & Cockrill and J. P. Brown, for appellee.

The assessment list is prima facie evidence of the regularity of all acts required under the act. Desty, Taxation, §§ 615, 724; 65 Ala. 142; 41 N.J.L. 275; 80 Hun, 122; 60 N.W. (Ia.), 733; 50 Ark. 266; 61 Ark. 252-253; 43 Ark. 243; 30 Ark. 69; 24 Ark. 402; 70 N.Y. 476-479; 84 N.Y. 596, 508; 86 Mich. 625; 62 N.Y. 567-576; 58 Conn. 522; 37 Ark. 100; 49 Ark. 190; 33 Ark. 816; 52 Ark. 82; 49 Ark. 535, 542; 63 Ark. 636; 56 Wis. 460. The bill of exceptions does not contain all the evidence, hence the court will presume that appellee's case was fully established. 35 Ark. 230; 38 Ark. 481; 45 Ark. 310; 39 S.W. 555; 44 Ark. 76. The answer of defendants is in the nature of a confession and avoidance, hence the burden is on them to show illegality. 13 Neb. 22 and 23; 14 Neb. 227. Assessments must be taken as conclusive. 59 Ark. 513, 535, 536; 49 Ark. 518; Cooley, Tax. 652, 638, 661, 663, 640, 661, note 1, 620, note 2; 78 Ky. 178; Desty, Taxation, 625; 21 Ark. 40; 21 Ark. 60. All presumptions are in favor of regularity of acts of board. 50 Ark. 266, 276, 277; 147 U.S. 91; 16 Wall. 334; Desty, Tax. § 510; Cooley, Tax. 342, 337; 8 Md. 352; 1 Pa.St. 224; 39 S.W. 555, 557; 29 Kas. 460; 38 Ark. 271, 274; 42 Ark. 152, 161; 20 Pick. 418; Cooley, Taxation, 665.

OPINION

BATTLE, J.

An act of the general assembly which became a law on the 15th of February, 1893, and the act amendatory thereof which was approved March 21, 1893, after describing certain territory known as the St. Francis basin, declared that it should constitute a levee district; and, naming certain persons directors, provided that they and their successors in office shall constitute a body politic and corporate by the name and style of the "Board of Directors St. Francis Levee District;" and empowered the board, and made it their duty, "to levy the St. Francis front in this state, and to protect and maintain the same in such effective condition as honest, able and energetic effort on their part may obtain by building, rebuilding, repairing or raising levees on the right bank of the Mississippi river, or such other places as the said board may select," and to employ all agents "necessary to the execution of their duties." To enable the board to carry into effect the object and purpose of the acts, they were empowered, and it was made their duty, "to assess and levy annually a tax not exceeding five per cent. of the increased value or betterment estimated to accrue from protection given against floods from the Mississippi river by said levee, on all lands within said levee district. Provided, That said board of directors shall call a meeting of the land owners in each of the respective counties within said levee district by posting notices of the time and place of said several meetings in ten conspicuous places in each county ten days before the day fixed for the meeting, at which time the proposition to levy said annual assessment shall be submitted to said land owners, and if a majority of all the land owners in such levee district shall appear at said meeting in person or by their legal proxies, and two-thirds of these shall vote for such assessment, it shall then be the duty of said board of directors to levy said tax." The acts further provide "that if the estimated cost of construction of said levee shall exceed two per cent. of the increased value of said land in said district as assessed, the board of directors may, at their discretion, submit a proposition to the land owners of said district to assess a tax on said increased value of lands not to exceed two per cent. per annum for so many years as may be necessary to raise a fund equal to the estimated cost of said levee;" and that "if a majority of said land owners of the said district shall attend the several meetings in said districts, and two-thirds of those attending vote for said taxation, the assessment shall be made by said board, and the proceeds used for the construction of said levee."

An assessment of the increased value or betterment to accrue to the lands in the district from the protection to be afforded by the levee when built was made by assessors appointed for that purpose for the years of 1893 and 1894, and was compared and equalized by a board of equalization; and a proposition to levy a tax of two per centum per annum on the increased value of the lands in the district, according to the assessment, for the purpose of building, repairing and maintaining the levee was submitted to the land owners of the district at meetings called for that purpose, and, the requisite number voting for the tax, according to the returns of the election, the tax of two per cent. was levied by the board of directors for the years 1893 and 1894. The Memphis Land & Timber Company and A. H. Chatfield failed to pay the assessments on their land in the district in St. Francis county, and suits were brought to foreclose the lien of the taxes upon the delinquent lands. Answers were filed by the defendants, admitting that the assessments were made, and that the taxes were levied, but averring that the same, for many reasons given, were illegal and void. The court, after hearing the evidence adduced by both parties, sustained the taxes, and ordered the lands to be sold to pay them.

The appellants contend that the circuit court erred in sustaining the taxes. This contention is partly based upon the theory that nothing is presumed in favor of the assessment or taxes, but the burden was upon the levee district to prove that everything essential to their validity was done. Assuming this theory to be correct, they contend that the taxes are illegal and void, because of an insufficiency of the evidence adduced at the hearing. But in this they are mistaken. For the act expressly provides that suits instituted to enforce the collection of the taxes levied by the board of directors "shall be conducted in the name of the St. Francis Levee District, and in accordance with the practice and proceedings of chancery courts in this state, * * * and this law shall be liberally construed to give to said assessment lists (taxes) the effect of bona fide mortgages for a valuable consideration and first lien upon said lands as against all persons having an interest therein." In giving the assessment lists the effect of bona fide mortgages, and requiring the suits to be conducted in accordance with the practice and proceedings in chancery courts, the act makes the assessment of taxes a lien upon the lands, and prima facie evidence of its legality and validity; for such is the effect of the mortgages referred to in the statute, and the practice in chancery as to them, when involved in suits. When the execution of the mortgage in conformity with the statute is shown, the burden is on the party assailing it to prove its invalidity. So, in suits for the collection of levee taxes, the assessment of the taxes being shown, the burden is on the party assailing to prove that they are illegal. Durbin v. Platto, 47 Wis. 484, 3 N.W. 30; Manseau v Edwards, 53 Wis. 457, 10 N.W. 554; Waterbury v. Schmitz, 58 Conn. 522, 20 A. 606.

The appellants admit that the assessment of the taxes was made by the board of directors, but allege that they were illegal for reasons specified in their respective answers. They confess and avoid, and thereby take upon themselves the burden...