James v. Board of Commissioners Greene & Craighead Counties Drainage District

Hart, C. J., (after stating the facts). It is first contended that the decree should be reversed because the cashiers of the two banks signed the claims which were presented to the commissioners and swore that nothing had been paid towards the satisfaction thereof. It will be remembered that each claim recites that it was a note given to the bank by the commissioners of the drainage district. As we have already seen, the original act creating the district provides that, if the work of improvement is not performed, the preliminary expenses shall be paid by a levy of taxes upon the real property of the district to be made by the commissioners. The Legislature of 1921, in the act repealing the district, provides that the commissioners allow all claims presented to them as required by the act, and that they may levy an assessment upon the real property of the district in the manner provided by the act for the ' pavment thereof. The repealing act provides.that all claims must be presented to the commissioners, duly verified as is required in actions of account. Section 4200 of Crawford & Moses’ Digest provides that, in suits upon actount, the affidavit of the plaintiff, duty taken and certified according to law that such account is just and correct, shall be sufficient to establish the same, unless the defendant shall, under oath, deny the correctness1*of the account. In the case at bar the cashier of -each bank verified the claim and stated that it was just and correct,' and' that nothing had been paid towards the satisfaction thereof. In addition to this the record recites that the commissioners had signed a note to each bank bearing 6 per cent, interest. No attempt was made by the landowners to show'that the claims were not just and correct or that any part of them had been paid. The action of the cashiers of the. banks in verifying the claims Avas the action of the banks themselves, for a bank can act in no other Avay than through its officers, and its cashier is the manager thereof. Michie on Banks and Banking, § 102 (5ca), pages 710-711; lb. § 54, page 274, and § 1.10 (4), page 772. But it is claimed by counsel for the defendants that, under § 1215 of Crawford & Aloses’ Digest, the verification of any pleading of a corporation may be by any officer or agent on AAdiom the summons in an action against the corporation may be served, and that the president is the officer upon w-hom service of summons must be had under our statute. A sufficient ansAver to this contention is that no objection Avas made to the form of the verification of the claim as presented to the commissioners, and no attempt Avas made to dispute the validity of either claim. Hence, in any event, it Avould lie too late to make the objection for the first time on appeal. It is next sought to reverse the decree because the repealing act provides for the allowance of the claims by the commissioners. As Ave have just seen, the presentation to the commissioners and the alloAvance by them of the claims constituted a compliance avíÜi the provisions of the repealing act. Such method of procedure for the ascertainment of preliminary expenses Avhen an improvement district is abandoned has been expressly approved by the court in Gould v. Toland, 149 Ark. 476, 232 S. W. 434, and other later cases. It is next insisted that there is no finding that the claims allowed were for preliminary expenses. We think, under the circumstances, no other legitimate inference could be drawn. The act providing for the creation and organization of the district gave the commissioners the poAver to incur indebtedness for certain preliminary expenses, and provided that it should be a lien upon the lands of the district in case the improvement Avas not made. The record sIioavs that the commissioners borrowed certain money from the two banks in question and gave their notes as commissioners therefor. They allowed the 'Claims of these banks when presented to them under the provisions of the repealing act. The attendant circumstances show very plainly that the amounts allowed were expenses incurred in the organization of the district and in making preliminary surveys. This view is strengthened when we consider the kind and character of the claims presented by other claimants and allowed by the commissioners. We are of the opinion that the facts presented by the record show that the claims of the banks were for borrowed money used in preliminary expenses, and we have decided that, under similar circumstances, the banks are entitled, as lenders of the money, to an allowance against the district. Gould v. Sanford, 155 Ark. 304, 244 S. W. 433; and So. Crawford Imp. Dist. v. Brown, 156 Ark. 267, 245 S. W. 821. It is next insisted that it was error to allow interest on the claims. In the first place, it may be said that the act creating the district authorized the commissioners to pay 6 per cent, interest on money borrowed for preliminary expenses, and this was the amount allowed. In the next place, under the two authorities just cited, the commissioners had the inherent power to pay interest on the amount borrowed to be used in paying preliminary expenses. In each of the cases cited the statement of facts shows that the commissioners borrowed money and executed a note bearing interest at the rate of 6 per cent. It is next insisted that the court erred in allowing a penalty of 25 per cent. Now, the act creating the district provides that, in case the work of improvement is not performed, all expenses incurred by the commissioners shall be paid by a levy of taxes to-be made by the commissioners in the manner set forth in the act. Under § 11, where delinquencies are reported to the board of commissioners in payment of assessments, it is made its duty to add to the amount of the tax a penalty of 25 per cent, and to proceed to collect the same in the maimer provided by §§ 23 and 24 of act 279 of the Acts of 1909. The method adopted for the assessment of benefits for paying the preliminary expenses was valid, nnder onr previous decisions. Standard Pipe Line Co. v. Index-Sulphur Drainage District, ante p. 372, and cases cited. It follows from the views that we have expressed that the decree was correct, and should be affirmed.