Waldrop, Collector v. Kansas City Southern Railway Co.

• Citation: 199 S.W. 369,131 Ark. 453
• Decision Date: 10 December 1917
• Docket Number: 34
• Parties: WALDROP, COLLECTOR, v. KANSAS CITY SOUTHERN RAILWAY COMPANY
• Court: Arkansas Supreme Court

199 S.W. 369

131 Ark. 453

WALDROP, COLLECTOR, v. KANSAS CITY SOUTHERN RAILWAY COMPANY

No. 34

Supreme Court of Arkansas

December 10, 1917

Appeal from Little River Chancery Court; Jas. D. Shaver, Chancellor affirmed.

Decree affirmed.

M. E Sanderson, for appellant.

1. The town of Ogden was legally incorporated. 97 Ark. 248. The incorporation could only be raised in a direct proceeding by the State. Ib.; 81 Id. 391; 47 Id. 269; 31 Id. 476; 20 Id. 204.

2. Acquiescence by the public for a long period of time precludes an inquiry into the legality of the incorporation. 38 Ark. 81; 54 Id. 372.

2. The orders were not void. The court was not held on the wrong day. Const. 1874, art. 18; Kirby's Digest, §§ 1320, 1365; 104 Ark. 627; 82 Id. 188; 57 Id. 1; 39 Id. 448; 32 Id. 278; 31 Md. 247; 28 Ark. 200; 35 Id. 56; 40 Id 431; 48 Id. 308; 208 U.S. 251; 95 Me. 385.

3. A valid levy of taxes was made. Kirby's Digest §§ 6894-5, 1499; 103 Ark. 529; 42 Id. 100; 37 Cyc. 9645; McQuillin, Mun. Corp., § 2404.

James B. McDonough, for appellees.

1. The purported levy of taxes was illegal and void. 103 Ark. 579; 100 Id. 488; Kirby's Digest, §§ 1496-8. The levy being illegal, the injunction was proper. 46 Ark. 471; 70 Id. 555; 90 Id. 130; 124 Id. 349; 30 Id. 101, 128; 59 Id. 344, etc.

2. The attempted levy by the town authorities was insufficient. Const., art. 16; Kirby & Castle's Digest, § 1545, par. 8; 82 Ark. 51; 100 Id. 488; 103 Id. 579; 69 Id. 730; 54 Id. 509.

3. There was no tax levied for the years 1915 nor 1916. Const., art. 16, § 11; Kirby's Digest, §§ 6894-5; 33 Ark. 690; 50 Id. 390; 54 Id. 665. The tax was levied at a time and by persons, not authorized by law. 55 Ark. 213; 68 Id. 34; 74 Id. 383; 82 Id. 51; 100 Id. 488. The record does not show that a majority of the quorum court participated in the levy. 103 Ark. 579. There was no legal meeting of the council. 64 Ark. 489; 73 Id. 197; 84 Id. 550; 105 Id. 109; 28 Cyc. 329, and notes 54-5; 20 A. & E. Enc. L. 1211, 1212.

4. Ogden was never legally incorporated. But if so it lost its existence by nonuser. 9 Am. Rep. 103; 6 Lea 730; 2 Id. 425; 76 Tex. 323; 89 Mo. 188; 5 P. 350; 113 Ill. 491; 76 S.W. 351; 10 Tex. 137. The orders of court were not made in term time. 68 Ark. 340; 82 Id. 188; 123 Id. 211; 124 Id. 234; 20 Id. 77; 27 Id. 414; 32 Id. 676; 55 Id. 213, etc.

5. The law does not authorize the inclusion of large tracts of agricultural lands into towns. 54 Ark. 321, and cases cited; 43 Ark. 324; 55 Ark. 609, 616; 106 N.W. 971; 85 S.W. 483.

6. The organization was unreasonable and void. 87 Mo. 396; 44 Mo. 574; 75 Ky. 419; 56 So. Rep. 632. The agricultural lands were not benefited.

7. Any taxpayer can enjoin an illegal tax by raising the illegality of the existence of the town. 99 N.E. 388; 57 S.E. 114; 53 S.W. 191; 8 Iowa 82. See also 10 La.Ann. 763; 1 Neb. 16; 48 S.W. 851; 87 N.E. 349; 34 Ark. 603; 46 Id. 471, etc.

STATEMENT OF FACTS.

This is a suit for injunction in the chancery court by the Kansas City Southern Railway Company to restrain W. D. Waldrop as collector of taxes for Little River County from enforcing the collection of taxes in the town of Ogden, in said county, for the years 1915 and 1916. In the complaint it is alleged that there is no such incorporated town in existence and the proceedings under which such town was attempted to be organized are void. It is also alleged that there was no valid levy of taxes for the years 1915 and 1916. The facts are as follows:

On the county court records of Little River County under date of June 24, 1907, appears the following:

"In the Matter of Incorporation of Ogden.

"Now on this date comes J. N. Wood et al., and present to the court their petition for the incorporation of Ogden, and upon consideration it is considered, ordered and adjudged by the court that J. T. Cowling be and he is hereby designated as agent herein, and July 29, 1907, is hereby fixed as the day to hear this cause." "Ordered that court adjourn until court in course. W. E. Kinsworthy, County Judge."

On the next page of the record appears the following:

"In the Matter of J. N. Wood et al. Petition to County Court.

"On this the 29th day of July, 1907, the day appointed for the public hearing of the petition filed by W. C. Forcade et al., for the incorporation of certain territory in the town of Ogden, this cause coming on to be heard upon the petition, and the petitioners appearing by their agent, J. T. Cowling, heretofore designated as such agent, and it appearing to the court: That due and legal notice was published in the 'Little River News,' a newspaper published and having a bona fide circulation in Little River County, for four consecutive weeks, towit: July 5, 12, 19, 26, respectively, and no remonstrance having been filed or other objections made by any person to the organization of said territory or incorporating the same into the town of Ogden. That said petition is signed by twenty-five qualified voters residing within the territory described in said petition and asked to be embraced in said incorporation. That the name proposed for said town is proper and sufficient to distinguish it from other towns in the State. And it further appearing to the court that it is right and proper that the said petition should be granted. It is therefore considered, ordered, adjudged and decreed by the court that the following territory, being the same set out in said petition, be organized and incorporated into the town of Ogden, towit: Beginning at where the north and south lines of sections seven and eight, township 14 south, range 28 west, of fifth principal meridian strikes the south bank of Red River, and running thence north along said line to the northwest corner of southwest quarter section 7, township 13 south, range 28 west of the fifth principal meridian; thence west to the northwest corner of the southwest quarter section 15, township 3 south, range 29 west of the fifth principal meridian; thence south to the south bank of Red River; thence east along said south bank of Red River to the point of beginning."

On a subsequent page of the same record appears an order of the county court changing the boundary line between Ogden Special School District and Common School District No. 6, in Little River County. All of the territory in the town of Ogden was created into the special school district. Formerly the whole of said territory had been a part of Common School District No. 6. The evidence in the record shows that originally the negroes were largely in the majority in Common School District No. 6, and the white people desired to form themselves into a special school district in order to get rid of the negroes. They were advised that the way to do this was to organize a town and then form a special school district out of the territory embraced within the corporate limits of the municipality as provided by section 7668 of Kirby's Digest et seq. In attempting to organize the town of Ogden the land on both sides of the railroad for seven miles in length and five miles in width was taken. There were houses on the eighty acres on which the railroad station of Ogden was situated. The balance of the territory designated was either farm lands or timber lands. Most of the lands were timber lands. There were about four lakes situated within the proposed territory. After the purported order of the county court above set forth was entered of record an election of a mayor, a recorder, and five aldermen was had. The evidence shows that a few ordinances were passed but no record was made of them. The person elected mayor left for another place early in 1908, and the record also shows that the most of the aldermen at various times left and established residences elsewhere. After the order of the county court declaring the organization of the special school district was entered of record, there was no other attempt to exercise any of the governmental functions of a municipality. There was no other election of officers and those elected in the beginning did not attempt to exercise any of the functions of their offices after the first of the year 1908, until they were persuaded to come back in the fall of 1915, and make the levy of special taxes which is the subject-matter of this lawsuit. Other facts will be stated or referred to in the opinion.

The chancellor found that the alleged town of Ogden was not legally incorporated; that the alleged order of incorporation made July 29, 1907, was void and that there was no levy of taxes as required by law. It was decreed that W. D. Waldrop, as collector of taxes be enjoined from the collection of any taxes claimed to be due the town of Ogden from the plaintiff.

HART J. McCULLOCH, C. J., concurring.

OPINION

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

In the first place the chancellor held that the corporation was not organized in accordance with the statute so as to acquire thereby a valid existence and in this conclusion we think the chancellor was correct. Section 5576 of Kirby's Digest provides that the order for the organization of incorporated towns shall be made by the county court. The record of the county court of June 24, 1907, shows that the court ordered July 29, 1907, as the day to be fixed for the hearing of a petition relative to the incorporation of Ogden. Subsequently, however, the record shows that the court was adjourned until court in course. This superseded the former order and adjourned the court until the next term thereof. There was no regular term of the county court of Little River County between June 24 and July 29, 1907. So the order purporting to have been made on July 29, 1907, was made at a time when the county court of Little River County could not be in session and the...