ARK.] GREEN V. WULFF DRAINAGE DIST. No. 4. 1087 GREEN V. WULFF DRAINAGE DISTRICT NO. 4. 4-4604
Opinion delivered April 26, 1937. 1. APPEAL AND E RROR.—Where, in an action against a drainage ais-trict for a distribution of hinds on hand on the theory that the work as planned had been completed, all the engineers, after examining the maps, plats, profiles, petitions, court orders and
1088 GREEN V. WULFF DRAINAGE DIST. NO. 4'. [193 minutes of the Boaid of Commissionere, igree that the drainage system was still incomplete, and there , is no evidence ,to dispute them. except , the lapse of time .and the fact that . the contractor had completed. his work and 'had been paid in 'full, held the . finding ro'f the frial court' that the 'work' had net been COMpleted Was supported by a preponderance of the eVidence 2. • DRAnsts.-Where . a drainage district organized under the . Alternative ;Drainage. System-Act of; 1909 (C. .11!1. • Dig., .§§ 3607- ,3666) has . on hand, after, paying all ,debte,.. a ;surplus of funds, it may, under, § 3630, use. the , m t • o pre . serve or ' repair th t e d h i es by keet•ing them clear of obstructions and ie -extend, deepen or Widen there, since 'such use 'of the"Meney 'IS' 'not . a diversion thereof, but is 'for the neeesSary 'purposes of the distiict: • • •• • , , . • Appeal from . Arkansas Chancery Court, Southern District ; .Harvey . .R. Luco,s,,Chancellor ; affirmed... W. A. Leach and Joseph Morrison; for.- appellants.. A. G.. Meehan,, J. M.:Brice and 'John,;W. MOncrief, for appellees. , : MOHANEY, J: Appellants are taxpayers- in appellee 'district, Which was organized in-1911 under the "Alternative ;Drainage -System- Act" of '1909,..4§' 3607-3666; Craw-ford & -Moses Digest.. -It' has continued to function . a§ from . j it§ organization to this . time.. ; On Jtine 13, 1911, it entered into a construction contract . with E: Hahn Construction .CoMpany -to 'dik its ditches . and laterals A l a yardage.ba§is,. and payment : Was to be Made in tonds of the : district: The district' appears to . have -been originally organized in 4908 under a previous' statute, a preliminary survey made- and a; map or plat' filed, Which is referred to in the record as the "Maxwell Plat: ??, This organization was abandoned-and-the district was reOrganized in 1911 as above stated. Anothersurvey was : made and a plat filed, which is referred to as the "Fitzhugh Plat." The contract fOr construction was carried out, taxes were levied! and: collected from year to, year on the benefits assessed against the, lands embraced in the district, and on October 21; 1912, the engineer submitted his final repOrts and estimate; 'showing . the' construction of : the . main canal and fifteen laterals,. from w . hich had 12.een removed .244,942.1 cubic yards ,O . earth at a total cost of $48,939:43.. It also showed the contractorhad .been paid $44,580.26; leaVing a balance of $4,309.17, fOr ,which •
ARK.] GREEN V. WULFF DRAINAGE DIST. No. 4. 1089 the district issued its certificate of indebtedness, and the contractor was paid in full. The bonds and certificate were all paid and retired, the final payment having been made in 1931, and on December 31 of that year the district had on hand a cash surplus of $5,515.23. In 1927- 1929, at the instance of appellants, or 'some of them, the district, .With its tax funds, made certain improvements to prevent flooding.of a highway in which all taxpayers were interested. . • In 1932, certain of the appellants who had not paid their 1930 tax on betterments; filed .suit to enjoin the district from collecting a tax against them, and later another appellant, for herself and all other taxpayers who had paid the, 1930, taxes; intervened, praying a distribution of the cash on hand among the landowners who had paid the 1930 assessment, on the theory that the district's funds at the close of 1930 were' sufficient to retire all bonds and interest maturing in 1931 without collecting in 1931 the 1930 tax. Appellee, district, answered that construction had not been completed according to plans and specifications, and that it should be permitted to use thefunds on hand to complete construction, and to repair and maintain the ditches. The trial court found against appellants • and dismissed the coMplaint and intervention for want of equity. The case is here on appeal. • As we view the record, the' questions presented are :
Was the construction completed, and if not, does the right now exist to Complete same and use the funds on
hand to pay the cost thereof ? May the funds noW on hand be used to repair and maintain the improvement? 1. As to whether the work, contemplated by the plans
and specifications 'as originally filed, has been completed,
a question -of fact is' presented. All persons connected
with the district, when organized and when the Hahn cdn-tract was carried out, are now dead. The plans and specifications filed with the county clerk are lost. There is on file the "Maxwell Plat," which was a preliminary survey, and the "Fitzhugh Plat," as, also, some of the profiles. Three engineers testified •for appellee, as did,
1090 GREEN V. WULFF DRAINAGE DIST. No. 4. [193 also, the present commissioners 'of the district: One of the engineers is the county surveyor of Arkansas county. All the engineers agree, after a careful examination of all the maps; plats, profiles, petitions, court orders and min. utes 'of the board of commissioners, as well as a careful examination and inspection of. the work done; that :the drainage system was still 'incomplete: There is no ,evi-denee to dispute them, except the lapse of time and the fact that Hahn completed his work and the . district settled with him in, full: The Hahn contract was on a yardage basis, and the fact that le was paid for the number of yards of . eartk removed Would not be 'conclusive of the question. We think it fairly certain that the; plans contemplated a physical connection of 1 the main canals in section 14, township 4 south, range 5 west, which was never completed ;.also, certain work called for by the plans in Rich Bayou on, the King's Bayou; section of the drainage system. The funds that are now on . hand are primarily construction funds. : They were collected for payment of construetion debts. The original assessment of benefits was:based largely. on the .cost of the . proposed improvement as shown by the plans and specifications,. and.if the construction was never completed as authorized . by the plans, then it necessarily follows that the funds , ; now on hand may be used to complete the, work, as originally planned : The trial court found that the work, had not heen,completed, and we think such finding , is supported 1 . )y the preponderance of . the evidence ; at least, we cannot sAy it. is against the„preponderance of ihe evidence. . Moreover; there is another reason why the 'funds now on ,band should not be refunded to the, 1930, taxpayers. It appears that the ditches need preservation work., Section.3630; Crawford & Moses' Digest, reads as follows : ." The district shall not cease to exist upon the completion of its drainage system, , but shall-continue to exist for the purPose . of preserving the same, of keePing the ditches clear from obstruetions and of extending, widening or deepening the ditches from time to time -as it may be found advantageous to the district. To thiS end
ARK.] GREEN V. WULFF 'DRAINAGE DIST. NO. 4. 1091 the .commissioners may from time to time apply . to the county court for the levying of 'additional taxes. Upon the filing of such petitions; notices shall be published by the clerk for two weeks in a newspaper published in each of the counties in which the district :embraces lands, and any property bwner seeking to resist • such additional levy may appear at the next regular term of the county court and urge his objections thereto, and either such property owners or the commissioners may appeal from the finding of the county court." Under this statute the board should preserve or repair the ditches by keeping them clear of obstructions, and they may extend, Widen Or" deepen the ditches, and they may apply to the county court for the levy of "additional , taxes." if they haA7e . a sufficient sum of money on hand, 'there would be no neCesSitY: for the levy Of "additional taxes." . We perceive no sound reason Why such money should not be expended for the preservation of the•district, as it inures to the benefit of all the property in the district. But all prOperty owners should be :kept on a parity by requiring all to pay alike. Of CourSe, if further funds are needed for preservatiOn Purposes, the procedure provided in § P 3630,• above quoted,. must Be followed. Appellants cite and rely on, Paving Pistriet No. 5 v. Fernandez, 142 Ark. 21, 217 S. W. 795; Bourland v.'South.- ard, 185 Ark. 627, 48 S. W. (2d) 555, and Benton,v.,NOW-. 1in, 187 Ark. 738; . 62 , S.W. (2d) 16, to, support their contention that the surplus funds on hand mu , st be distributed back to : the taxpayers, . But these are . rriunicipal improvement district cases, controlled .by thp . constitutional i provision requiring the consent of the majority,' in ,value of the proPerty .oWners, whereas". rural . 'improyenient districtS are not so circumscribed, The Constitution; Art. -16, § 11, prohibiting' the' Use Of tax 'moneys:for any-other 'pUrpese than that for ;which the tax,WaS . levied, applies . to general * taxation only and not tolocal assessments. Mc-Adams y. Henl:ey, 169 ' Ark. 97,„273, 5,5, 41 A. L. R. ,629.- Moreover, the proposed use, to which' the funds on
1092 [193 hand will be put is not a diversion thereof, but for the necessary purposes of the district. We are, therefore, of the opinion that the court properly dismissed the complaint as being without equity, and the decree is accordingly Affirmed. SMITH, C. J., SMITH and MEHAFFY, M., dissent:
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.