Jonesboro, Lake City & Eastern Railroad v. Board of Directors of St. Francis Levee District

McCulloch, J. The Board of Directors of St. Francis Eevee District' brought this.suit in chancery against the Jonesboro, Lake City & Eastern Railroad Company, and other delinquent taxpayers in Craighead County, to enforce payment of the levee tax due for the’ year 1903 on the land of the delinquent named as defendants in the complaint.' The appellant appeared in the suit and filed its answer contesting- the right of appellee to collect the levee tax, and from a decree in favor of the plaintiff appeals to this court. It is contended that appellee has not sufficiently alleged in the complaint, nor established by proof, its right to levy and collect the tax assessment claimed in the complaint. The particular defect in the complaint relied on by appellant seems to be that it contains no specific allegation that before the assessments were levied on lands in the district an election by landowners was held, •pursuant to the act of the General Assembly creating the district, and that at such election a majority of the landowners was present and voted in favor of the project. The complaint does allege, in general terms, that the lands were duly assessed as provided by the act of the General Assembly, and that the taxes were duly extended. This was a statement — imperfect, perhaps —of a good cause of action. It was not questioned by demurrer or otherwise, and was sufficient to warrant a decree. The statute authorizes the Board of Directors of St. Francis Levee District to maintain suits in the chancery courts of the respective counties in the district for the enforcement1 of delinquent levee taxes, and provides that such suits “shall be conducted in accordance with the practice and proceedings of chancery courts in this State except as herein otherwise provided.” Now, the distinction is plain between a complaint -which wholly fails to state a cause of action and one which imperfectly states a cause of action. The former will not, whether challenged by demurrer or not, authorize a judgment of the court, whereas the imperfections of the latter are waived unless taken .advantage of by a motion to make more definite and certain. Choctaw, O. & G. Rd. Co. v. Doughty, 77 Ark. 1; Fordyce v. Merrill, 49 Ark. 277; Murrell v. Henry, 70 Ark. 161. Counsel for appellant rely upon St. Louis, I. M. & So. Ry. Co. v. Dudgeon, 64 Ark. 108; but in that case the sufficiency of the complaint was challenged in apt time by demurrer, and the defendant rested upon the demurrer, without pleading over. The case at bar is different. The only testimony introduced by appellee to show that the meeting of the landowners had been held, and that a majority of the landowners were present at the meetings in the several counties and voted in favor of assessing the lands annually, was the record of the board of directors containing a certificate or report of the president, secretary and treasurer showing that they had canvassed the returns of said election, giving in detail the vote on the question in each county, and that a majority of the Iand-< owners had attended. The act creating the levee district provides that the return of this election shall be made to the secretary of the board, and that that officer, together with the president and treasurer, shall canvass the returns, declare the result and give notice thereof throughout the district. The certificate of these officers and the record thereof made by the board of directors, being records authorized in the line of their duties, were competent and prima facie evidence of the facts therein recited. Overstreet v. Levee District, post p. 462. The regularity and validity of the assessments, and the competency of the testimony establishing same, are in other respects questioned by appellant, but we find that the record evidence introduced by appellee at the hearing below was sufficient to establish, prima facie, the validity of the assessments in accordance with the statute. The question of the competency of such testimony is controlled by the recent decision of this court cited above. The statutes authorize the assessment of railroad property bv the mile for levee purposes in this district. This was done. The court below rendered a decree for the amount of the tax, penalty, costs, etc., and declared the same a lien on the road as a unit, ordering a sale by commissioners in the event of failure to pay. That was correct. This court in Kansas City, P. & G. Rd. Co. v. Waterworks Imp. Dist., 68 Ark. 376 said: “There is no authority to sell a section of the right of way of a railroad, although a lien is declared thereon for the assessment. Elliott says (§ 791) that it is the general rule ‘that where the statute specialty provides a remedy for the enforcement of the assessment, that remedy must be pursued; but if a right be given, and no remedy prescribed, the courts will usually provide the appropriate remedy.’ Whether we term this assessment a debt against the railroad in personam, or only in rem against the particular property, it can only be collected against the road as a unit; that is, against the whole road within the State.” Decree affirmed.