Western Clay Drainage District v. Wynn

• Decision Date: 08 July 1929
• Docket Number: 79
• Citation: 18 S.W.2d 1035,179 Ark. 988
• Parties: WESTERN CLAY DRAINAGE DISTRICT v. WYNN
• Court: Arkansas Supreme Court

18 S.W.2d 1035

WESTERN CLAY DRAINAGE DISTRICT v. WYNN

179 Ark. 988

No. 79

Supreme Court of Arkansas

July 8, 1929

Appeal from, Clay Chancery Court, Western District; J. M. Futrell Chancellor; affirmed.

Decree affirmed.

F G. Taylor, for appellant.

C O. Raley, for appellee.

OPINION

SMITH, J.

On August 24, 1927, this suit was begun by the Western Clay Drainage District (which was created by special act No. 368 of the Acts of 1907--Acts 1907, page 890) to foreclose the lien for delinquent drainage assessments upon numerous tracts of land in the district, which were described in the complaint. The suit was one in rem, as the act creating the district authorized, and appellees intervened and alleged that they were the owners of certain lands therein described, against which the lien for the 1918 drainage taxes was asserted. The pleading was in the nature of a demurrer, and was so treated by the court, and it alleged that no cause of action was shown against the lands upon which it was claimed that the 1918 taxes were due and delinquent. The demurrer was sustained, and the cause was dismissed as to appellees' lands, and this appeal is from that decree.

The action of the court was based upon the provisions of act 534 of the Acts of 1921 (General Acts 1921, page 573). This is an act entitled: "An act to provide for the filing of a delinquent list of lands, town lots, railroads and tramroads in road and drainage districts, and for the collection of delinquent taxes thereon." The act requires that lists of delinquent lands be filed with the clerk of the chancery court, and provides that redemptions may be effected through that officer. Section 4 of the act reads as follows "When the board of commissioners, or any one authorized by law to file suit for the collection of such delinquent taxes, desires to commence said suit, they shall obtain a certified copy of said list from the said clerk, which shall be filed with the complaint and taken as a part thereof, and the clerk, for making said list, shall be entitled to ten cents per tract, which shall be taxed as costs in said suit. No suit for the collection of such delinquent taxes shall be brought after three years from date same became delinquent."

It appears, from the face of the complaint, that suit was not brought against appellees' lands until more than three years had expired since the lands became delinquent for the nonpayment of the taxes sought to be collected, and the cause of action was therefore barred by the statute quoted, if it applies.

It is insisted that act 534 applies only to improvement districts created under general statutes, and not to those organized by special acts of the General Assembly, as was the appellant drainage district. There appears to be as much reason for the enactment of a statute of repose in a district created by a special act of the General Assembly as in one organized under the general law, and we find nothing in act 534 which limits its operation to districts of a particular character. It apparently applies to all suits to enforce the collection of delinquent drainage taxes. The cases of Moore v. Long Prairie Levee District, 153 Ark. 85, 239 S.W. 380; Beasley v. Hornor, 173 Ark. 295, 292 S.W. 130; and Swearingen v. State, use of Benton County, 160 Ark. 326, 254 S.W. 537, construed portions of act 534 of the Acts of 1921, other than § 4 thereof, and the districts there referred to were organized under special acts of the General Assembly, and no question was made in any of those cases against the applicability of act 534 to districts organized under special statutes.

It is also insisted that any legislation imposing a limitation on the time within which suits may be brought to enforce payment of the delinquent assessments is inhibited by subdivision (m) of § 8 of the act creating the district. This paragraph of the act reads as follows:

"The said special assessment shall be a charge and a lien against all the said property in said subdistrict from the date of the filing of said list of assessments and lands assessed in the office of the recorder of deeds, as hereinbefore provided, and shall be entitled to precedence over all judgments, executions, incumbrances or liens, whensoever created and of whatsoever character, and shall so continue until such special assessment, with any penalty,...