Miller v. Watkins

• Decision Date: 20 December 1937
• Docket Number: No. 4-4728.,4-4728.
• Parties: MILLER v. WATKINS et al.
• Court: Arkansas Supreme Court

111 S.W.2d 466

MILLER v. WATKINS et al.

No. 4-4728.

Supreme Court of Arkansas.

December 20, 1937.

Dissenting opinion.

For majority opinion, see 110 S.W.2d 531.

MEHAFFY, Justice (dissenting).

I cannot agree that this court has the right to amend or suspend the statute of limitations. The opinion on rehearing says: "Upon these considerations our former opinions are modified to the extent of now holding that the right to sue is suspended where lands or town lots have been sold to the State, and that this suspension is not dependent upon the validity or invalidity of the sale to the State. The right is suspended in either case, as the State cannot be divested of its paramount lien for its taxes, whether the sale was good or bad. It must also follow from this holding that the right of the improvement district to sue is not barred by the statute of limitations through failure to sue while the actual or apparent title is in the State."

The statute provides when the suits to collect assessments shall be commenced. If not commenced within the time fixed by the statute, the cause of action is barred. Section 12 of article 2 of the Constitution provides: "No power of suspending or setting aside the law or laws of the State shall ever be exercised except by the General Assembly." This court, in discussing the power of the Governor to remit penalties for delinquencies in the assessment of taxes, said: "The manifest design of the framers of the Constitution was to limit the power to pardon for crime and to remit fines and forfeitures to criminal and penal cases after conviction of crime or judgment for the imposition of fine or forfeiture, and not to allow its application to penalties and forfeitures civil, remedial, and coercive in their nature. This is clearly indicated in another provision of the Constitution which expressly declares that: `No power of suspending or setting aside the law or laws of the state shall ever be exercised except by the General Assembly.' Article 2, § 12. The effect of a general amnesty such as is attempted by the proclamation now under review would operate as a suspension of the law and come within the spirit, if not within the letter, of the inhibition of the Constitution just quoted, and when the two provisions of the Constitution are read together it is clear that it was intended to confine the power of the executive, with respect to the remission of fines and forfeitures, strictly to criminal and penal cases after judgment, and not to remedial and coercive penalties such as a penalty for nonassessments or nonpayments of taxes." Hutton v. McCleskey, 132 Ark 391, 200 S.W. 1032, 1033. This court has also held that a statute providing that no action for the recovery of any land against any person, his heirs or assigns who may hold such lands under a donation deed from the state, shall be maintained, unless it appear that the plaintiff, his ancestor or grantor, was seized or possessed of the lands within two years next before the commencement of such suit or action.

This court said: "The statute itself contains no exceptions from its provisions in favor of infants or other persons under disability, and there is nothing in it that implies that the legislature intended...