Skillern v. White River Levee District

• Decision Date: 12 May 1919
• Docket Number: 211
• Citation: Skillern v. White River Levee District, 139 Ark. 4, 212 S.W. 90 (Ark. 1919)
• Parties: SKILLERN v. THE WHITE RIVER LEVEE DISTRICT
• Court: Arkansas Supreme Court

212 S.W. 90

139 Ark. 4

SKILLERN v. THE WHITE RIVER LEVEE DISTRICT

No. 211

Supreme Court of Arkansas

May 12, 1919

Appeal from Monroe Chancery Court; John M. Elliott, Chancellor affirmed.

STATEMENT OF FACTS.

This action was instituted by the appellant against the appellees as the Board of Directors of the White River Levee District for the purpose of preventing them from increasing the assessments against his land and from issuing certain bonds.

The White River Levee District was created by Act 97 of the Acts of the General Assembly of the State of Arkansas for the year 1911. The act provided for the assessment of benefits by reason of the levee protection and authorized the levy of an annual tax upon the lands included in the district upon the benefits so assessed. The benefits to the lands, by reason of the building of the levee, were to be ascertained and assessed by a board of assessors chosen by the Board of Directors for that purpose, and, when the assessments were completed, they were to so remain until the next assessment was ordered by the board. The benefits were assessed by the board of assessors at $ 15 per acre. The district comprised several thousand acres of land in the counties of Woodruff Monroe and Prairie. Act 104, volume 1, Acts 1917, p. 519 authorized the White River Levee District upon the petition of landowners, owning not less than seventy per cent. of the total acreage, to issue certificates of indebtedness to raise money to repair the levee, in emergency, when same had been damaged by overflow or other cause, or was in danger. After the passage of the act of 1917, a petition of the landowners of the district, in conformity with the statute, was filed in the chancery court and the court granted the petition and ordered that certificates of indebtedness be issued to secure funds for the purpose of repairing certain portions of the levee. The certificates of indebtedness thus authorized were not issued and the work of repairing the levee at that time was not performed. The Legislature of 1919 passed Act No. 166, which reads, in part, as follows:

"Section 2. On account of the levee improvement and the other work incident thereto, which has already been completed, and which is largely in excess of the improvement originally contemplated by the district, as well as the improvements now in process of completion, the benefits to the real estate therein, as heretofore fixed and determined, are hereby increased at the rate of six per cent. per annum; such increase of benefits shall be cumulative and shall continue from year to year until the present indebtedness of the district is fully matured and paid, and such annual installments thereof shall be effective on the first day of June of each year.

"Section 3. The majority of the landowners of said district having duly authorized said district to issue certificates of indebtedness not to exceed $ 100,000 for the purpose of paying the indebtedness of the district incurred during the overflow of 1918, and also for the purpose of raising funds to pay for the present necessary work of raising, strengthening and repairing the levee of said district, the Board of Directors of said district are hereby authorized to borrow a sum of money not in excess of $ 100,000 for the purpose of funding said certificates of indebtedness, and to issue therefor the negotiable bonds of the district, payable at such times as they deem best, and bearing a rate of interest not to exceed six per cent. per annum."

The Legislature of 1919 also passed Act No. 178, section 1 of which reads as follows:

"The Board of Directors of the White River Levee District shall have the power to straighten the channel of Cache river as a means of protecting the lands of the district against inundations from the waters of said river, and may issue the bonds of the district in a sum not exceeding $ 150,000 and bearing interest at a rate not exceeding six per cent. for the purpose of raising the money to do such work."

Appellant was the owner of land in the levee district. He set up the above statutes in his complaint and alleged that the original assessments of benefits amounted to $ 15 per acre on the lands; that the Board of Directors "are proceeding to increase the benefits assessed" against his lands and other lands of the district six per cent. per year for the year 1919. He alleged that no certificates of indebtedness were issued under the provisions of the act of 1917, but, notwithstanding that fact, the Board of Directors "are attempting to issue and sell the negotiable bonds of the district to the amount of $ 100,000 under the provisions of Act 166, and $ 150,000 under Act 178 of the Acts of 1919." He alleged that the issue of bonds in these amounts "will cause the indebtedness of the district to greatly exceed the benefits assessed against the lands of the district by the Board of Assessors; that the same is prohibited in the act creating said district and that, if such bonds are issued and sold, such action of the Board of Directors will create a cloud" upon his title. He alleged that the acts of the board in increasing his assessments and issuing of bonds, above set forth, were unlawful and prayed that the Board of Directors be restrained from so doing.

The appellee demurred to the complaint on the ground that it did not state a cause of action. The court sustained the demurrer and entered a decree dismissing the same for the want of equity, from which is this appeal.

Judgment affirmed.

W. E. Trice, for appellant.

1. Section 2 of act 166 is not valid. It seeks to amend the original act by reference to its title only without re-enacting it. This cannot be done, as it violates the Constitution. Article 23, section 6, Constitution 1874; section 5 Act No. 97. Increasing the assessments under act No. 166 alters the provisions of the original act and is void, as it merely extends the provisions of the old act and does not re-enact them. 52 Ark. 290; 49 Id. 131; 58 Id. 253.

2. There are no certificates of indebtedness outstanding and the board has no right to issue bonds. Act No. 166, § 3. This section is nugatory, as there are no certificates outstanding.

Rose, Hemingway, Cantrell & Loughborough, for appellees.

1. The provision for an annual increase of assessments of benefits is valid under act No. 166, § 2. 76 Ark. 197; 85 Id. 171. There is no constitutional prohibition. 99 Ark. 1; 112 Id. 342.

2. Section 3 of the act, 1919, is valid. The intent of the Legislature is clear and it should be upheld. 3 Ark. 285; 11 Id. 44; 28 Id. 203; 40 Id. 431. See also 80 Ark. 150; 86 Id. 518; 93 Id. 168; 94 Id. 422. Mere mistakes or errors will not invalidate an act. 109 Ark. 556. The intention must prevail. Supra.

OPINION

WOOD, J., (after stating the facts).

It appears from the allegations of the complaint that the Board of Assessors provided for in act 97 of the Acts of the General Assembly for the year 1911, creating appellee levee district, assessed the benefits to be derived from the protection afforded by the levee improvements contemplated, at $ 15 per acre. It further appears that the Legislature of 1919, by section 2 of Act No. 166, "passed for the purpose of aiding the White River Levee District," "increased the benefits to the real estate therein at the rate of six per cent. per annum." The act specified that: "Such increase shall be cumulative, and shall continue from year to year until the present indebtedness of the district is fully matured and paid."

Section 5 of act 97, creating the district, provides that the assessments of the Board of Assessors "shall be the assessments of the district until the next assessment shall be ordered by the Board of Directors." It is argued that section 2 of act 166, supra, alters and extends the provisions of section 5, supra, of the original act, creating the district, without re-enacting and publishing at length that section, and thus violates section 23, article 5 of the Constitution, which provides: "No law shall be revived, amended or the provisions thereof extended or conferred by reference to its title only, but so much thereof as is revived, amended, extended or conferred, shall be re-enacted and published at length." Section 2 of act 166, supra, does not purport to, and does not in fact, amend or extend the provisions of section 5 of Act 97 of the Acts of 1911, "by reference to its title only or in any other way." The title of the act under review is "An act entitled an act in aid of the White River Levee District." It is a wholly independent enactment. True its effect is to repeal that part of section 5 of Act 97 of Acts of 1911 which reads: "And their assessment as equalized shall be the assessment of said levee district until the next assessment shall be ordered by the Board of Directors." But this is so because section 2 of act 166, supra, is a direct assessment of benefits by the Legislature and is in invincible conflict with that part of section 5 of act 97 last above quoted, which continues the assessment of benefits made by the Board of Assessors "until the next assessment shall be ordered by the Board of Directors." In Scales v. State, 47 Ark. 476, Chief Justice COCKRILL, speaking of the provision of the Constitution now under consideration, said: "It is well settled that this provision does not make it necessary, when a new statute is passed, that all prior laws modified, affected or repealed by implication by it should be re-enacted." See also the opinion by him in Watkins v. Eureka Springs, 49 Ark. 131, 4 S.W. 384. The act therefore is not in conflict with section 23, article 5 of the Constitution.

It is also urged that the Legislature has no...