Waldrop v. Kansas City Southern Ry. Co.

• Decision Date: 10 December 1917
• Docket Number: (No. 34.)
• Citation: 199 S.W. 369
• Parties: WALDROP, Tax Collector, v. KANSAS CITY SOUTHERN RY. CO.
• Court: Arkansas Supreme Court

199 S.W. 369

WALDROP, Tax Collector, v. KANSAS CITY SOUTHERN RY. CO.

(No. 34.)

Supreme Court of Arkansas.

December 10, 1917.

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

Suit by the Kansas City Southern Railway Company against W. D. Waldrop. Decree for plaintiff, and defendant appeals. Affirmed.

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 29th, 1907, is hereby fixed as the day to hear this cause."

"Ordered that court adjourn until court in course. W. E. Kinsworthy, Co. 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, to wit, July 5th, 12th, 19th, 26th, 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 25 qualified voters residing within the territory described in said petition and asked to be embraced in said incorporation, and that the name proposed for said town is proper and sufficient to distinguish it from 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, to wit: Beginning at where the north and south lines of sections 7 and 8, 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 law suit. 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.

M. E. Sanderson, of Texarkana, for appellant. Jas. B. McDonough, of Ft. Smith, for appellee.

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

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 proceedings purporting to be of that date were not judicial proceedings. When it was ordered on the 24th day of June, 1907, that the county court should be adjourned until court in course, the term lapsed, and no further proceedings could be taken until the court met at a subsequent term pursuant to the statute.

The order of the court organizing the proposed territory into an incorporated town was null and void, for the reason that the land was not of such character as could form an incorporated town. The record shows that the territory attempted to be formed into the town of Ogden ran parallel with the railroad track on both sides of it, and was 7 miles in length and about 5 miles in width. The railroad station of Ogden was situated on 80 acres of the land and there were a few residences on these 80 acres. Most of the rest of the lands within the limits of the proposed town were timber lands, and the remainder were agricultural lands. There were four lakes upon the lands within the limits of the proposed town. It was manifest that the owners of the lands could not derive any benefits whatever from the lands...