948 STIMSON VENEER & LUMBER TRUST v. LACONIA [213
LEVEE DISTRICT OF DESHA COUNTY. , • • ; • ; '; !:;• . • ‘,.1-•STIMSON • VENEER .& 'LUMBER TRUST y: LACONIA LEYEE • • • ; " DISTRICT OF DESHA ' COUNTY:. ' ' ). •(' 4-8611 2.14 S.. Mr. 2d 7:0 '=Opinloh detivered'Odtdbei . 18, 1948:' . IMPROVEMENT DISTRICTS—LEthSLATIVE BETERMINATION.—Act NO1. 463 of 1917 'creating appellee district and placing' appellant's lands in the district was, although the lands were between the river and the levee to be constructed, a Legislative determination that thd lands *child be benefited by ihe COnstruCtiori , cif the :levee. 2. IMPROVEMENT DISTRICTS—LEGISLATIVE DETERMINATION AS TO BENE1 •FITS.z —Whether . : the Legislative judgment in determining that certain lands included in an .area which it has organized into fan improvement district would be benefited by the improvement had been properly exercised cannot be deteimined upon a mere preponderance 'Of the evidence. 3. IMPROVEMENT DISTRICTS—ACT OF LEGISLATURE IN CREATING, REVIEW-- ABLE, wHEis i.Onlsi in-arbitrary and manifest abuse of power by
ARR. ". STIMSON VENEER: & LUMBER,. TRUST 1.t. LACONIA. 949
LEVEE DISTRICT OF ■ DESHA COUNTY. :the Legislature"in creating-improvement districts will be revievied ,. the courts. , . IMPROVEMENT DISTRICTS—LEGISLATIVE DETERMINATION OF BENEFITS. Where the Legislature has created an improvement district and levied , a tax for the reaSon that in opinion of 'the Legislatfire the lands therein, will be peculiarly benefited, its action IvilLgenerally • be deemed conclusive. • , . IMPROVEMENT DISTRICTS.—Mistakes of judgment by the Legisla7 ture in creating an improvement district will not be revieWed the. courts. - „ , • , • ' 6._ LuPuovpitEr■TT , D. IsllucTs.-,The ; Legislative determination that appellant's lUnds, though between the river and the levee to_be con:- • structed, wonid be beriefi'ted by ihe iinprove -ment wa g not an arbi-''' trarY'abtisecif LeiislatiVepoiVer. IMPROVEMENT bisrxicTS.- Api3ellant'S 'objbetiOn th4t its lands ire • 'hot ; benefited by ihe,imp'i'overnent was',.äfter ' Paying the. benefits assessed fori a number, of years; made' . ' , Appeal from Desha ChanceryCourt ; 4.4.1prAdhain, Chancellor.. AEI-Med. - !I Daggett,;(6 Ddggett; for' appellant.' .N -Witt Poe for aPpellge. • ff.', J: Ladonia • LeVe6 DiStriet_ of Desha county; appellee, brbught this aetioli: tö'fOreelose its lien agaiiist eertain lands, including-the-land§ vOlved, for delinquent 'taxes for-the yeari 1943, 1944; and 1945. Appellant in itS ansiVer Odtcro§s-complaiiit,dellid4 the District's Tighttto foreClose the ground.'"that'all' of said lands are located outside' OT on the river side 'C:11 the levees of the Laconia Levee District and 'receive no benefit or .Protection whatev,er ,from the District ort,its levees, and that,to collect tax from said land would,he unauthorized and illegal, taking under, the laws and Con-: stitution of the United States and the . State. of Arkansas; and asks that the complaint heretofore filed be dismissed and that all right, title, claim to, or demand of, the appel-lee' in and to said lands be 6aneelled and the title quieted in appellant and that aPpellee be enjdined from .here.-: after attenipting td cone& taxes' from the 'above.and Cle;. seribed lands." 1" " Appellee, District; 'replied, 'admitting that appellant's lands were west-of what is known as the White
950 STIMSON VENEER & LUMBER TRUST V. LACONIA [213
LEVEE DISTRICT OF DESHA COUNTY. River Levee and subject to overflow, but denied that said lands are not benefited. From a decree in favor of appellee is this appeal. The following facts were stipulated as true : "1. That the Stimson Veneer & Lumber Trust is the owner of the following described lands, to-wit : (describing them). "2. That the boundaries of the Laconia Levee District were fixed by Act 463 of the year 1917, by the Ar-kansas General Assembly, whereby the western boundary • of the District was fixed as Scrub Grass Bayou, the northern line being the county line between Phillips county and Desha county, and the eastern and southern line being the Mississippi River Levee, and comprising some 30,000 acres of land; that by said Act the District was authorized to issue bonds and levy a tax upon the lands-in the-district, the-purpose-being-to-enlarge _and construct its Jevees as reflected by the map attached hereto, which is made a part of this stipulation and which the parties agree is accurate ; that bonds were issued and the levee tax pledged, which levy was by § II of Act 463 of 1917 made continuous and obligatory upon the lands within said district until said indebtedness should be fully, paid ; that there now remains unpaid of said indebtedness the sum of $77,000, evidenced by serial re--funding bonds, dated May 1, 1946, bearing interest at the rate of 21/2 per cent. per annum. "3. That the lands of the Stimson Veneer & Lumber Trust are west of the levee of the Laconia Levee District and east of the Scrub Grass Bayou, and are now, and have been at all times, subject to backwater overflow of the Mississippi River and White River, as shown by the map attached hereto. "4. That many years after the construction of the Laconia Levee District Levee the White River Drainage District constructed a levee along the east bank of the White River and east of the cross-complainant's lands and joined the Laconia Levee on its western edge ; that since the construction of said White RiVer Drainage District levee the water level on these lands from the Mis-
ARK.] STIMSON VENEER & LUMBER TRUST V. LACONIA 951
LEVEE DISTRICT OF DESHA COUNTY. sissippi River overflow and backwater up the White River has been materially increased. "5. That all of the lands of cross-complainant herein involved are wild and unoccupied lands. "6. It is stipulated and agreed that west of Bayou, NW 1/4 of section 35, township 7 south, range 1 west, is without the boundaries of the district and should be stricken from the tax rolls." It was also stipulated that St. George Richardson, a civil engineer of Memphis, Tennessee, whose qualifications are unquestioned, if present, would testify, among other things, that "I am entirely familiar with the area here in dispute. I have been upon the lands upon numerous occasions. I have studied the exhibit which has heretofore been introduced herein, the lands in question being indicated thereon by the area shaded red. It is my opinion, based upon my personal knowledge of these lands and upon my study of the aforesaid' exhibit, that the levee constructed by the Laconia Levee District is not now, nor could it ever be, of any benefit to these lands. Therefore, taxation of said lands by the diStrict would be, in my opinion, an arbitrary and manifest abuse of its taxing power." There was also introduced in evidence, by appellee, "a decree dated the 21st day of April, 1919, in Desha Chancery Court in the case of White River Lumber Company, et al., v. Laconia Levee District, et al., which decree recited that all the lands described in the complaint were assessed by the Laconia Levee District for the years 1915, 1916, 1917, and 1918, and that payment of said taxes was refused by the respective owners upon the claim that said lands were not benefited and were erroneously assessed in said district. Said decree held that certain lands of plaintiffs were benefited and liable to assessment for taxation and rendered judgment" for the delinquences. Said lands were described as follows : (describing them). "The court held that all other lands described in the complaint, and not included in the above listed, were out-
952 StiMSON VENEER: & -LUMBER- TRUST V. LA:00Nrik [213 LEV-Et-• - D _ i _ s t-m -6i 6E -, DE-Sag:COUNTY: side =the ,., boundatieS , Of th - e- L-_ a cOnia . . Le ve e -D istricti :and not benefited by the iinprOVenienti . Set,a-side,rthefo - riider assessments, , and eempted -said lands from i.fUture as- seSSiiaentS -."-- - • • Appellee is _relying upon the _provisions of Act 463 Of the'Legi -slatUre 6f "1917'foilte anth6ritY-to inapOSe and colleet the tax6s- Onitye lands - Of aiTellant involVed,here, ThafAet is entitled: 'AN . .A.eTto aiithoriie _the LacOnia Levee District in Desha countY 'to 13 -6irOW money and fo p reseribe, and, define the boundaries; of,-and ,the property .said-diArict, upon . ,WhiCh , iniptiSts.mayr be -asSessecl andfcollected- to -, provide; funds it° . pay, :theriprincipah and int erest. ot; said; "borrowed. 'money,: and -otherile'dessary expenses--of -thef,district;U::: -...s•od r tion-: • I of :the, • ACt" anthOrizedi_the hor.rowings..,,of Money Th it Hi e ìcees,of -306 006 for i tiayiiik ci-6bt- and needediiiiproi remenfg_arthe l cc fim arid.to iSSne negotiable , ;6%; bonds e;f6 ,"' C7 Acco.rdingly,r,moneY.r.wasjborrowed;and',the-'disteriot has:still twits tanding'_refunding kinds , in: the-apprOkinikte athount Aifl$77,000. _;) : 07-;111. SeCtion 2 provideS : " To secure the payment of,said bonds and the interest thereon as they mature -, :said board:of leN r eeinspeCtorS shall haVe the'Tiglit tbieecute aridnitnina r ent2to =a. trustee-fbr the ( --bonelhOlders;; bp Whieli it;shall pledgi driaTn101-tkee; all itS ,:iiiebnieL rOj s -eaft ztie payment: Of7said 'bond s' ; arid shall-le -vy - dna C011edi in Said district- iannuanyi:OrYlthe-::f011oNvitig--desCribedpi-oyieftf, `.! ,Beginnuig'ai the base of , the northeast. quarier ' Of section .6 township 7- south ranke , r2,-eak on the line .between, Desha_and- P-hillips c6UntieSr; thencedne.we4 to_the..east bank ,of,,SCrub-Rass BaYou -in...section: 2. "foiknship. 7 e -xange weA ---Uence §onthwardb, " alOgr.the easf_hank_ of Scrub Grass.-Bayjou tO . tlig line ' betiveen' the no -rth and S Outh 7, township 8 south, range 1 east; thence eastwardly and northWardly -along the '86uth and :east base:of :the 7 -missis-sipp levee,7 to "the ,rioint-6f- begihfiink -'
ARK.] STIMSON VENEER & LUMBER TRUST V. LACONIA 953
LEVEE DISTRICT OF DESHA COUNTY. of, said levee district -being-hereby fixed and determined by said.aboye recited description), and aISo upon all railways, tramways ,and rights of way which are located within the above described boundaries, which noW -are or shall become taxable for state revenue, a levee tax not exceeding ten (10)per ,Cent. 'of the 'value aSsessed there against fOr. the purpose Of . State and . eonnty general tax;; ation ; which levy'iS herebY Made Cbntinnous and Obliga2 terf 'until all of said bonds and . ' intereSt thereOn 'shall have been hilly, '• ' '" • ''"' This S-ection: is the Legislatiire's . detérthination !as to- the district's boundaries and it is undisputed, as has been indicated, that appellanVs-lands, , are withih these boundaries. Whether the lands of appellant involved here, adrnit-tedly within the boundaries of the distriet, were benefithd by the improvement and -subject to the payment 'of the assessments 'imposed -depends. on -whether the Legislature, in creating the- Improvement District, manifestly and arbitrarily abused its, powers iinder the Act; supra. The guiding rule ,was announced by this 'court (in 'St. Louis, Iron Mountain & Southenv Railivag Coinpany v. Board of Pirectprs of Levee . Pistrict No. 2 of Jackson (founty, 103 Ark. 127, 145 . S. W, 892, in this language "After the' Legislatire has deterniined that a Certain area which alias organized into an improvement distriet will be benefited by the improVeinent, it is not a question for the courts to determine upon-a ilreponderance Of 'the evidence as ;to whether Or . not 'the legiSlative *judgment has been properly exercised..iIt is onlY an a'xbitrary 'and manifest abuse of power : by the -Legislattre . in creating improvement districts that Will be reviewed by the eourtS. CooleY, Said: . YThe whole subject of taxincr districts belongS to the . Legislature. It has been.repeatT edly decided that the legislative -,act _assigning districts for special taxation on the basis of benefits can not be attacked on the ground'a v erfer injiidgnient regarding the special. benefits and defeated . by satisfying a c641ft that no Special or. peculiar' benefits are received. If the Legislature has fixed the district, and laid the tax for the
954 Snmsox VENEER & LUMBER TRUST V. LACONIA [213
LEVEE DISTRICT OF DESHA COUNTY. reason that in the opinion of the legislative body such district is peculiarly benefited, its action generally must be deemed conclusive.' 2 Cooley on Taxation (3 Ed.), pp. 1207-8. "As is said in Moore v. Board of Directors of Long Prairie Levee District, 98 Ark. 113, 135 S. W. 819 : 'Only an arbitrary and manifest abuse of power by the LegiSlature would be reviewed, and not merely mistakes of judgment. To hold otherwise would be to take away from the lawmakers the powers committed to them and to substitute the judgment of the courts, requiring the latter to review every matter alleged to have been erroneously determined by the Legislature. We think it would serve no purpose to attempt to discuss and analyze the facts presented on the question of whether appellant's lands have been benefited or improved by the lovee. It sufficeilo -sarthat -g fthr a Careful review of the record we conclude that the testimony is sufficient to show that the determination of the Legislature, in including within the district the lands of appellant, was not an arbitrary and manifest abuse of its powers under the rule announced above. In reaching this conclusion, we are not influenced by the decree of the Desha Chancery Court of April 21, 1919, supra, and attach no importance to it. , We attach great weight . to the undisputed fact that appellant, or its predecessors in title, (just when appellant acquired title, the record does not show), since the creation of this district, under Act 463 of 1917, has paid all annual installments extended against these lands, without objection. It therefore for many years bad knowledge that its lands were included in the district, and that bonds had been issued and sold, which became a burden not only upon appellant's lands but upon all the lands in the district. In the circumstances, appellant's objection comes too late: (Tarleton Drainage District No. 15 v. American Investment Company, 186 Ark. 20, 52 S. W. 2d 738.) Finding no error, the decree is affirmed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.