Young v. Red Fork Levee Dist.

• Decision Date: 15 May 1916
• Docket Number: (No. 397.)
• Citation: 186 S.W. 604
• Parties: YOUNG et al. v. RED FORK LEVEE DIST.
• Court: Arkansas Supreme Court

186 S.W. 604

YOUNG et al. v. RED FORK LEVEE DIST.

(No. 397.)

Supreme Court of Arkansas.

May 15, 1916.

Appeal from Circuit Court, Desha County; Jas. C. Knox, Special Judge.

Condemnation proceeding by the Red Fork Levee District, in which James R. Young, administrator, and others, filed their petition to be made parties. To the court's action in striking the petitions from the files, petitioners excepted and appealed. Affirmed.

F. M. Rogers, of Arkansas City, for appellants. X. O. Pindall, of Little Rock, for appellee.

McCULLOCH, C. J.

Appellee is a levee district created by special statute enacted by the General Assembly of 1891, and appellants are severally the owners of tracts of land through which a portion of the levee was located and constructed during the year 1914. The right of way for the levee was condemned and damages to the owners assessed pursuant to the terms of the act of February 24, 1905, entitled "An act to provide a method for the exercise of the right of eminent domain by levee, drainage, and ditching districts." Acts 1905, p. 143.

Appellants contend that the act of 1905 is, in the first place, inapplicable to the Red Fork levee district, for the reason that the act of 1891, creating that district, and the amendatory act of 1893, provided a different method of condemnation; and also contend that the act of 1905 is void in some respects which affect the validity of the present proceeding. The language of the act of 1905 is peculiar in that it provides that:

"The board of directors of the St. Francis levee district, and all other levee and drainage districts organized under the laws of the state of Arkansas, are hereby authorized," etc.

That language is found in the initial sentence of the first section of the act, and the same language occurs in section 8, which confers certain powers on "the board of directors of the St. Francis levee district, or any other levee or drainage district." It is difficult to understand just what was in the legislative mind at the time this language was used; but, when the ordinary effect is given to the words "all other levee and drainage districts organized under the laws of the state of Arkansas," it renders the preceding designation of the St. Francis levee district purely surplusage, for that is one of the levee districts organized under the laws of Arkansas (a special statute) and is included within the general description. The statute is, in other words, a general statute applicable to all levee and drainage districts in the state, and we have so decided in another case. Russell v. Board of Directors of Red River Levee District, No. 1, 110 Ark. 20, 160 S. W. 865. The Red River levee district was created under a special statute of the state, and in that respect was like the St. Francis levee district.

It has been suggested in argument that the fact that the lawmakers saw fit to insert the name of the St. Francis levee district indicated that the general words used were intended to be applied only to levee and drainage districts created pursuant to general laws of the state, and not to those created by special statutes, and that it was necessary to designate that particular levee district in order to bring it within the terms of the statute. We do not think that that is the proper interpretation of the language of the act, for it is too general an expression to be open to that interpretation. If the statute amounts to a general one, which is applicable at all to levee and drainage districts other than the one especially mentioned, it necessarily includes all that are created by or under the laws of the state, whether pursuant to special statutes or pursuant to the general statutes authorizing the formation of those districts. It is proper to consider the title of an act for the purpose of determining its true meaning, and we find that in the title of this act language is employed which refers to all levee and drainage districts generally, and not a particular one. It is true there is certain language in section 9 of the act, declaring that "all lands bordering upon and near the Mississippi river shall be public to public servitude," which might be construed as referring only to levee districts organized for the purpose of giving protection from flood waters of the Mississippi river; but we can treat that language as only applying to levee districts along the Mississippi river, without impairing the general force of the statute in its application in other respects to all other districts in the state. We are convinced, therefore, that the lawmakers intended to include all levee and drainage districts in the state, or at least that the language used by the lawmakers is susceptible only to that interpretation.

When the act is thus construed, it necessarily repeals the special provision in the act of 1891, creating the Red Fork levee district, and the act of 1893 amendatory thereof. Hampton v. Hickey, 88 Ark. 324, 114 S. W. 707. Those statutes, which apply especially to the Red Fork levee district, contain no provision for condemnation other than proceedings to be initiated by the landowner for the assessment of damages. The act seems to contemplate that the directors shall have full authority to locate the levee, and that the initiative is on the landowner to institute proceedings to secure an assessment of damages. It provided that notice should be given by the landowner and that a jury should be then summoned to assess the damages. The statute also provided that that remedy should not be exclusive, but that the landowner could choose the common-law right of action to recover damages for the trespass. We are of the opinion, however, that that statute was repealed by the act of 1905 which applies to all such districts organized under the laws of the state. The act of 1905 gives authority to levee and drainage districts to condemn rights of way through lands of private owners for the purpose of constructing...