Fellows v. McHaney

Smiti-i, J., (after stating the facts). We think there is no conflict between the acts creating the drainage distriot, and the act creating the levee district. The former was organized for the purpose of draining a large territory and free it, not merely from overflow, bnt from the existence of a sluggish stream, while the levee district was organized for the purpose of affording protection from overflows to a much smaller section of country. From the description of the two districts, it is apparent that a much smaller area was contained in and protected by the levee district than was contained in and benefited by the drainage district. That the drainage district was larger than the levee district is of no significance, .as it is a matter of common knowledge that there are levee districts in the State which contain many drainage districts, and it may be the drainage may not become entirely effective without levee protection. Here the levee district was organized to protect the land against overflows of the Arkansas River. This drainage district was organized principally to protect that district against the inundations of Fourche Bayou and from the diseases which it engenders. It is true that these acts resulted in a double assessment against numerous tracts of land; but a tract of land may be benefited by two drainage districts or by drainage and levee districts, and, if so, there is no want of authority to assess it for the benefits received by each district, the assessment being ascertained by the respective agents making the assessments. Wilson v. Compton Bond & Mortgage Co., 103 Ark. 452. It is true the act of 1907 provided a method for the assessment of benefits against the lands therein situated, and further provided a method by which any land owner who felt himself aggrieved might have his assessment reviewed. And it is true that these appellants were proceeding under the authority of this act at the time of the passage of the repealing act of 1913. But the Legislature might in the first instance have made this assessment without the interposition of any board of assessors, in which event its action would have been final and subject only to the right of the.courts to review for an arbitrary and manifest abuse of that power, and having this power in the first instance, it could, afterward exercise it at its pleasure, and it has done so. By this act of 1913, the Legislature ascertained and declared that the assessment previously made was a proper one and validated it, and its action in so doing is beyond judicial review in the absence of a showing that the assessment so validated was arbitrarily made regardless of benefit; or a showing that no benefit could possibly accrue from the improvement sought to be made to the property sought to be taxed. These are questions of very great importance, but they have been raised and considered and decided in numerous recent cases by this court. Moore v. Board of Directors of Long Prairie Levee District, 98 Ark. 113; St. Louis S. W. Ry. Co. v. Board of Directors of Red River Levee District No. 1, 81 Ark. 562; Board of Directors of Jefferson County Bridge Dist. v. Collier, 104 Ark. 425; St. Louis S. W. Ry. Co. v. Grayson, 72 Ark. 126; St. Louis, I. M. & S. Ry. Co. v. Board of Directors of Levee District, 103 Ark. 132; Sudberry v. Graves, 83 Ark. 344; Salmon v. Board of Directors, 100 Ark. 369; Alexander v. Board of Directors, Crawford County Levee District, 97 Ark. 322. It does not appear from the pleadings how the assessors revised the assessments which were attacked in the original complaint, but it is alleged that they are still unjust, illegal and confiscatory. In Moore v. Board of Directors of Long Prairie Levee District, it was said: “Nor can the courts review merely on general allegations that the assessments are ‘arbitrary, excessive and confiscatory.’ Facts must be pleaded which 'show that the decision of the lawmakers was not merely erroneous, but that it was manifestly outside of the rango of the facts, so as to amount to an arbitrary abuse of power; for nothing short of that will authorize a review by the courts. ’ ’ It was not alleged here that appellants’ lands would not have been benefited at all by the improvement. They simply contend that the assessment validated by the Legislature, is unequal and unjust, and these allegations are not sufficient to authorize the court to review a legislative assessment. Nor do we think that appellants acquired any vested rig’hts in the remedy provided for the review of their assessments hy the act of 1907; creating the drainage district; because one must pursue'whatever remedy is provided by law for the redress of his grievances. Green v. Abraham, 43 Ark. 421; Sudberry v. Graves, 83 Ark. 348; Pelt v. Payne, 90 Ark. 601; Sidway v. Lawson, 58 Ark. 122; Johnson v. Richardson, 44 Ark. 372; Vaughan v. Bowie, 30 Ark. 282. It is insisted that the Legislature did not intend to foreclose the right of appellants to proceed under the authority of the act of 1907, because there was no final assessment for the Legislature to validate; and that there could be no final assessment until all errors had been corrected and all inequalities adjusted. But the Legislature determined these matters for itself, when it conferred jurisdiction upon the Pulaski Chancery Court to wind up the affairs of the district, and to adjudicate the claims against it, and to direct its receiver “to collect upon the assessment of benefits heretofore made a sum sufficient to-pay all claims found to be due, the tax necessary for the payment thereof to be divided into fiye installments, as near equal as possible.” Three months were given for the adjudication of the claims against the district, and it is manifest that the Legislature. having ascertained’ what the assessment of benefits should be, required only that the indebtedness of the district be ascertained, and then, by calculation, that indebtedness should be divided into five installments. This assessment is based upon prospective benefits, which can not be realized because of the repeal of the acts creating the district, but such assessments may be made. Board of Directors, Crawford County Levee Dist. v. Dunbar, 107 Ark. 285; Davies v. Chicot County Drainage Dist., 166 S. W. 170. The decree of the court below sustaining the demurrer is therefore affirmed.