Morris v. Drainage Dist. No. 24

• Decision Date: 21 November 1921
• Docket Number: (No. 249.)
• Citation: 234 S.W. 980
• Parties: MORRIS et al. v. DRAINAGE DIST. NO. 24 OF CRAIGHEAD COUNTY et al.
• Court: Arkansas Supreme Court

234 S.W. 980

MORRIS et al. v. DRAINAGE DIST. NO. 24 OF CRAIGHEAD COUNTY et al.

(No. 249.)

Supreme Court of Arkansas.

November 21, 1921.

Rehearing Denied December 12, 1921.

Appeal from Circuit Court, Craighead County; R. H. Dudley, Judge.

Petition by Drainage District No. 24, of Craighead County, Ark., and others for an assessment to pay certain indebtedness. From a judgment dismissing an appeal from a judgment levying the assessment, Allen Morris and another, property owners, appeal. Reversed and remanded, with directions.

J. F. Gautney, of Jonesboro, for appellants.

Sloan & Sloan, of Jonesboro, for appellees.

HART, J.

This appeal challenges the correctness of a judgment of the circuit court dismissing the appeal of property owners from a judgment of the county court levying an assessment upon the real property in a drainage district to pay certain indebtedness.

Drainage District No. 24, Craighead County, Ark., was organized under the alternative system of drainage districts. Crawford & Moses' Digest, §§ 3607-3655, inclusive. The commissioners of the drainage district held a meeting on the 4th day of September, 1920, in Jonesboro, Ark., at which all the members were present. The matter of the indebtedness of the district was taken up and discussed. Claims for engineering services, attorney's fees, fees and expenses of the commissioners, fees paid an abstractor of title and certain printing expenses, amounting in the aggregate to $5,528.21, were allowed. After all the claims had been allowed, a resolution for a tax to be levied to pay said claims was adopted.

A petition setting up the foregoing facts more in detail was filed in the county court by the commissioners. The commissioners further stated that the claims as allowed at their said meeting represented all of the lawful indebtedness of said district, and that a tax of 3 per cent. on the face of the assessed benefits would be required to pay said indebtedness. The prayer of the petition is that the county court make an order approving the action of the commissioners and directing the levy of the tax.

On the 12th day of November, 1920, the county court made an order approving the proceedings of the board of commissioners of said drainage district, and the levy of the tax by them on the real property in said drainage district. The county clerk of Craighead county was directed in the order to extend said taxes on a book specially procured by him for that purpose, and the collector was directed to collect the taxes in the year 1921. On the 25th day of January, 1921, Allen Morris and J. D. Haynes, property owners in said drainage district, filed affidavits for appeal, duly verified, and prayed an appeal to the circuit court from said order. The affidavits for appeal were duly examined by the county court and an order was made on said 25th day of January, 1921, granting an appeal from said judgment of the county court to the circuit court. On the 7th day of February, 1921, the commissioners of said drainage district appeared in the circuit court and filed their motion to dismiss the appeal of Allen Morris and J. D. Haynes. The circuit court granted the motion and dismissed the appeal. Allen Morris and J. D. Haynes excepted to the ruling of the court, and have duly prosecuted an appeal to this court.

The correctness of the judgment of the circuit court depends upon the construction to be given to sections 3610 and 3617 of Crawford & Moses' Digest.

Section 3610 provides that when the county court has established the drainage district, it shall appoint three owners of real property within the county to act as commissioners. After providing the form of oath the commissioners shall take, and how vacancies may be filled by the county court, the section continues as follows:

"Upon their qualification, the board shall prepare plans for the improvement within the district, as prayed in the petition, and shall procure estimates from competent engineers as to the cost thereof. For this purpose the board may employ such engineers and other agents as may be needful, such engineers to give bond as required in section 3607, and may provide for their compensation, which with all other necessary expenditures, including the services of such attorneys as the county may employ, shall be taken as a part of the cost of the improvement. If for any cause the improvement shall not be made, said cost shall be charged on the real property in the district, including railroads and tramroads, and shall be raised and paid by assessment in the manner hereinafter prescribed."

Section 3617 reads as follows:

"The county court shall at the same time that the assessment of benefits is filed, or at any subsequent time when called upon by the commissioners of the district, enter upon its records an order, which shall have all the force of a judgment, providing that there shall be assessed upon the real property of the district a tax sufficient to pay the estimated cost of the improvement, with ten per cent....