W. B. Worthen Co. v. Delinquent Lands

• Decision Date: 15 October 1934
• Docket Number: No. 4-3635.,4-3635.
• Parties: W. B. WORTHEN CO. v. DELINQUENT LANDS.
• Court: Arkansas Supreme Court

75 S.W.2d 62

W. B. WORTHEN CO. v. DELINQUENT LANDS.

No. 4-3635.

Supreme Court of Arkansas.

October 15, 1934.

Appeal from Pulaski Chancery Court; Taylor Roberts, Special Chancellor.

Suit by the W. B. Worthen Company, trustee, to foreclose on certain lands in Improvement District No. 513 of the City of Little Rock for nonpayment of delinquent benefit assessments. From a foreclosure decree, omitting certain provisions requested by complainant, the latter appeals.

Affirmed.

Rose, Hemingway, Cantrell & Loughborough, of Little Rock, for appellant.

S. L. White, of Little Rock, for appellee.

HUMPHREYS, Justice.

This is an appeal from a decree of foreclosure in favor of appellants of certain lands in improvement district No. 513 of the city of Little Rock, Ark., on account of the failure to pay delinquent assessment of benefits to appellants. Appellants are appealing from the decree in their favor because the court refused to incorporate into the decree a penalty of 20 per cent., costs, a reasonable attorney's fee, and if payment were not made within 10 days the property should be sold on 20 days' notice, and that if the owner did not redeem from the sale within two years by the payment of the purchase price and 10 per cent. interest, the commissioner should deliver to the purchaser a deed, and that immediately upon the delivery of the certificate of purchase after the sale should be confirmed, the purchasers should have possession pending redemption without accountability for rents. These requested provisions were in accordance with the statutes in force and effect at the time the district was organized in 1930 and at the time the bonds were issued and sold to construct the improvement. These remedial provisions of the statutes were amended or repealed by Acts Nos. 278, 252, and 129, pp. 868, 790, 375 of the acts of the Legislature of 1933 so as to provide a penalty of 3 per cent., no attorney's fee, twelve months for payment, six months' notice of sale, redemption within four years by payment of the purchase price and 6 per cent. interest, and no right to possession without accountability for rents pending redemption.

In rendering the decree of foreclosure, the court followed the remedial provisions contained in Acts Nos. 278, 252, and 129, pp. 868, 790, 375, of 1933, so the only question presented upon appeal and insisted upon by appellants for a reversal of the decree is whether the later acts are in contravention of article 2, § 17, of the Constitution of Arkansas, and article 1, § 10, of the Constitution of the United States, which forbid the passage of any law impairing the obligation of contracts and of the Fourteenth Amendment to the Constitution of the United States, which forbids any state to deprive any person of his property without due process of law. An inspection of the acts of 1933, called in question, will disclose that they are entirely remedial in their nature and do not attempt to take away any of the vested rights of appellants such as their lien and right to foreclose same, but simply reduce the penalty and extend the time required to foreclose in case of default and to redeem from a sale and are, in our judgment, reasonable changes to meet the exigencies of the depression and to give property owners a reasonable time and opportunity to save their homes. The constitutionality of Act No. 278, p. 868, of 1933 was attacked from every conceivable angle in the case of Sewer Improvement District No. 1 of Wynne v. Delinquent Lands, 188 Ark. 738, 68 S.W.(2d) 80, and this court upheld the act. In deciding that case the authorities were fully reviewed, and it is unnecessary to review them again. Suffice it to say that the case referred to governs and controls the instant case. There is no difference between the three acts in tenor and effect, so the reasoning as to the validity of Act No. 278 is applicable to Acts Nos. 252 and 129.

No error appearing, the decree is affirmed.

McHANEY, Justice.

I dissent for the reasons stated in my dissenting opinion in Sewer Imp. Dist. No. 1 of Wynne v. Delinquent Lands, 188 Ark. 738, 68 S.W.(2d) 80, and am authorized to say that SMITH and BAKER, JJ., concur therein.

JOHNSON, Chief Justice (concurring).

I concur in all that is said in the court's opinion, and in addition thereto I assign the following reasons supporting or tending to support the opinion: Act No. 278, p. 868, of 1933 was before us for consideration in Sewer Imp. Dist. No. 1 of Wynne v. Delinquent Lands, 188 Ark. 738, 68 S.W.(2d) 80, and we there declared its provisions not in conflict with the State or Federal Constitutions, and I have nothing to add to the opinion in that case. Acts Nos. 252 and 129, pp. 790 and 375, of 1933 have not been before us prior to the opinion herein; therefore these elucidations.

Act No. 252, p. 790, of 1933 has the effect of allowing property owners in all municipal improvement districts in this state four years from date of judicial sale in which to redeem. Appellants' contention is that this act increased the period of redemption from two years (which was allowed under the law when their bonds were issued) to four years, thereby impairing the obligations of their contract. This contention is without merit. Section 5644 of Crawford & Moses' Digest, which is a...