West v. Cotton Belt Levee District No. 1

• Court: Arkansas Supreme Court
• Writing for the Court: HART, J.
• Citation: West v. Cotton Belt Levee District No. 1, 173 S.W. 403, 116 Ark. 538 (Ark. 1915)
• Decision Date: 01 February 1915
• Docket Number: 147
• Parties: WEST v. COTTON BELT LEVEE DISTRICT NO. 1

173 S.W. 403

116 Ark. 538

WEST v. COTTON BELT LEVEE DISTRICT NO. 1

No. 147

Supreme Court of Arkansas

February 1, 1915

Appeal from Phillips Chancery Court; Edward D. Robertson Chancellor; affirmed.

STATEMENT BY THE COURT.

M. E West instituted this action in the chancery court against Cotton Belt Levee District No. 1 and the board of directors and treasurer of said district for the purpose of enjoining and restraining them from proceeding to enforce the collection of an assessment against a certain tract of land belonging to the plaintiff which, he alleged, was unlawfully assessed against his land. The plaintiff set up a state of facts substantially as follows:

The Cotton Belt Levee District No. 1 of Phillips County Arkansas, was organized by the county court of Phillips County in year 1887, under the provisions of chapter 100 of Kirby's Digest and embraces 136,694 acres of land in that county. Since that time the organization of the district has been kept up and the board of directors has been engaged in building levees for the protection of lands within the district and has continuously elected the officers provided for in the statute. W. F. Craggs, H. D. Moore and Greenfield Quarles were the directors for the district at the time the proceedings now complained of were had. The plaintiff is the owner of certain lands within the district.

At a regular meeting of the board of directors held on July 1 1914, a resolution was adopted providing that it was necessary that certain work be done to protect the lands of the district from overflow. The board found it necessary to enlarge the levee in certain places, to build a forty-foot banquette along the side of the levee and to provide additional right-of-way therefor. The resolution provided that the board of directors should cause an accurate survey of all the work they deemed necessary to be made and the engineer of the district was ordered to make the survey.

At a subsequent meeting the board of directors received the written report of its engineer showing the amount, character and kind of work to be done and the exact location thereof, together with an accurate survey of all the work deemed necessary by the board to protect the district from overflow.

In accordance with the terms of the statute, the board of directors gave notice to the land owners of the district, that a meeting of the land owners would be held at the office of the Board of Trade, in the city of Helena, in Phillips County, on the 29th day of July, 1914, at 2:30 o'clock P. M., for the purpose of considering the improvements and the expediency of doing the work before referred to. At that meeting proof was made to the land owners present to show that the notice had been posted as required by the statute, and the reports and estimates of the engineer, with maps, surveys, plans, calculations and specifications, together with the assessment of the assessors, were laid before the land owners present. All of the land owners present, either in person or by proxy, voted that the work be done. It was estimated that the probable cost of the work would be $ 81,000, and the assessed value of the land in the district amounted to $ 1,125,169. It was provided that there should be assessed and levied a tax of 72 per cent upon the betterments estimated to accrue to the land, railroads, tramroads, rights-of-way and roadbeds in said district by reason of the work, and that the tax should be paid in twenty-four annual installments of 3 per cent each.

Pursuant to the vote of the land owners at the meeting aforesaid, the board of directors also passed a resolution providing that there should be levied on the value of the lands in said district for repairs and incidental and contingent expenses of the district an annual tax of five mills on the dollar of th value of such lands as assessed for State and county purposes.

The defendants interposed a general demurrer to the complaint. The chancellor sustained the demurrer and the plaintiff declined to plead further and has expressly elected to stand upon his complaint. Thereupon the chancellor dismissed his complaint for want of equity and a decree was entered to that effect. The plaintiff has appealed.

Decree affirmed.

Fink & Dinning, for appellant.

1. The meeting of land owners and the proceedings of the board were had at a place outside the district, and hence void. Kirby's Dig., § 4941; 103 Ark. 127; 10 Cyc. 320.

2. The board had no authority to levy a tax in excess of five mills. Kirby's Dig., ch. 100, § 4938; Ib., § 4961.

3. Levee districts have no powers beyond those expressly conferred. Nothing is taken by intendment. 103 Ark. 127.

Moore, Vineyard & Satterfield, for appellees.

1. The statute only requires that the meeting shall be held at "some place convenient to * * * the work." Kirby's Dig., § 4941. As to what powers are conferred on the board, see section 4953 of Kirby's Digest. A board of directors is invested with no powers except those expressly granted, or such as are necessarily implied in order to carry out the purposes and objects for which the district was formed. 106 Ark. 39-48. In the absence of fraud it will be presumed that all necessary formalities in the proceedings were complied with. 4 Ark. 258.

2. The board had authority to levy the tax. The levee has never been completed. Kirby's Dig., §§ 4927-4938-4961; 53 A. 728; 32 S.E. 349; 49 A. 518; 14 N.E. 600; 54 Ark. 224.

HART J. KIRBY, J., dissents.

OPINION

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

Section 4941 of Kirby's Digest provides that the board of directors shall call a meeting of the land owners of said district at some place convenient to some part of the work. The meeting of the land owners in this case was called and held in the Board of Trade building at Helena, in Phillips County, a place outside the boundaries of the district. It is contended by counsel for the plaintiff that this rendered the whole proceeding void.

The plaintiff did not charge the board of directors with any design to perpetrate a fraud in selecting the city of Helena as the meeting place of the land owners. The only contention of counsel in this respect is that the city of Helena is not within the boundaries of the levee district and that ...