Skillern v. White River Levee District

WOOD, J., (after stating the facts). It appeal’s from the allegations of the complaint that the Board of Assessors provided for in act 97 of the Acts of the General Assembly for the year 1911, creating appellee levee district, assessed the benefits to be derived from the protection afforded by the levee improvements contemplated, at $15 per acre. It further appears that the Legislature of 1919, by section 2 of Act No. 166, “passed for the purpose of aiding the White River Levee District,” “increased the benefits to the real estate therein at the rate of six per cent, per annum.” The act specified that: “Such increase shall be cumulative, and shall continue from year to year until the present indebtedness of the district is fully matured and paid.” Section 5 of act 97, creating the district, provides that the assessments of the Board of Assessors “shall be the assessments of the district until the next assessment shall be ordered by the Board of Directors. ” It is argued that section 2 of act 166, supra, alters and extends the provisions of section 5, supra, of the original act, creating the district, without re-enacting and publishing at length that section, and thus violates section 23, article 5 of the Constitution, which provides: “No law shall be revived, amended or the provisions thereof extended or conferred by reference to its title only, but so much thereof as is revived, amended, extended or conferred, shall be re-enacted and published at length.” Section 2 of act 166, supra, does not purport to, and does not in fact, amend or extend the provisions of section 5 of Act 97 of the Acts of 1911, “by reference to its title only or in any other way.” The title of the act under review is “An act entitled an act in aid of the White River Levee District.” It is a wholly independent enactment. True its effect is to repeal that part of section 5 of Act 97 of Acts of 1911 which reads: ‘‘ And their assessment as equalized shall be the assessment of said levee district until the next assessment shall be ordered by the Board of Directors.” But this is so because section 2 of act 166, supra, is a direct assessment of benefits by the Legislature and is in invincible conflict with that part of section 5 of act 97 last above quoted, which continues the assessment of benefits made by the Board of Assessors “until the next assessment shall be ordered by the Board of Directors.” In Scales v. Slate, 47 Ark. 131-134, Chief Justice Cook-rill, speaking of the provision of the Constitution now under consideration, said: “It is well settled that this provision does not make it necessary, when a new statute is passed, that all prior laws modified, affected or repealed by implication by it should be re-enacted.” See also the opinion by him in Watkins v. Eureka Springs, 49 Ark. 131-131. The act therefore is not in conflict with section 23, article 5 of the Constitution. It is also urged that the Legislature has no power to increase the benefits assessed by the Board of Assessors at the rate of six per cent, per annum and to make same cumulative and continuous until the existing indebtedness matured and was paid. It is the settled law in this State that the Legislature may act directly in assessing benefits to accrue from local improvements which it has authorized, and the “legislative determination should be and is conclusive unless it is arbitrary and without any foundation in justice and reason.” Salmon v. Board of Directors, 100 Ark. 366; Moore v. Board of Directors of Long Prairie Levee District, 98 Ark. 113, 116-117; Board of Improvement v. Pollard, 98 Ark. 513, and cases cited. Since under these decisions the Legislature has the power primarily to determine the value of the benefits to be derived from a local improvement, it follows as a necessary corollary to this doctrine that the Legislature may increase the original amount of the benefit assessment whether same was made directly by it or by a board of assessors to which the power had been delegated. The exercise of the power in the first instance did not exhaust it. The Legislature could continue to exercise the power until the purpose in creating the levee district had been consummated. The method prescribed in section 2 of act 166, supra, by which the Legislature determined that the amount of the value of the benefits which would accrue to the lands; by reason of the improvement, would be represented by a sum consisting of the original assessment of $15 per acre at rate of 6 per cent, per annum thereon, to be cumulative and to continue from year to year until the indebtedness of the district was mature, was within the province of the Legislature. The amount of the value of the benefits could be easily and definitely ascertained by this method, because it fixed with certainty the time of the interest to run as the date when the then indebtedness of the district matured. In Oliver v. Whittaker, 122 Ark. 291, the court held that assessments of benefits could be made to bear interest at the rate of 6 per cent, per annum, under a statute which provided that “the deferred installments of the assessed benefits shall bear interest at the rate of 6 per cent, per annum and should be payable only in installments as levied.” In construing this provision, the court said that it was not intended “to authorize the imposition of any burden in excess of the actual value of benefits to the property together with interest on deferred payments. ” So it may be said here that there was nothing in the language of the act that reveals any intention on the part of the Legislature to impose any burden upon the property in excess of the value of the benefits to the lands. The appellant further contends that the board had no authority to issue bonds under the third section of Act 166, supra, for the reason that at the time of its passage there were no certificates of indebtedness outstanding, inasmuch as the work contemplated by the act of 1917 was never performed and no certificates of indebtedness were actually issued under the authority of such act. But the language of section 3 of act 166, supra, shows that the board was authorized to issue certificates of indebtedness in the sum of $100,000 not only for the indebtedness of the district “incurred during the overflow of 1918,” but also “for the purpose of raising funds to pay for the present necessary work of raising, strengthening, and repairing the levee of said district. ’ ’ Although it appears from the allegations of the complaint that the Legislature made a mistake in finding that there was a present indebtedness against the district for work done during the overflow of 1918, yet the language of the third section of the act shows that the Legislature was not under any misapprehension as to the existing necessity of raising, strengthening, and repairing” the levee of the district. There are no allegations of fact in the complaint showing, that the necessary work to be done, in order to effectuate the purpose in building the levee, namely, to protect the lands from overflow, would cost less than the sum of $100,000. To be sure, the Legislature would have no power to authorize the issuance of bonds to liquidate an indebtedness which had not been, and which would never be, incurred. But taking the language of the act as a whole it clearly evinces the purpose to provide a fund to be expended in necessary work on. the levee. 'Being convinced that such was the intention of the Legislature from the language employed, it is our duty to give effect to the statute, even though some of the language indicates that it was used under a mistake of fact. The words “incurred during the overflow of 1918” should be treated as surplusage, and could and should, be eliminated in order to carry out the manifest purpose of the Legislature. This view is in accord with recognized canons for the correct interpretation of statutes, as announced by the best authors on the subject, and often approved by our own court. See Lewis’ Sutherland on Stat. Con., secs. 363 to 384, inclusive, also secs. 489, 490; Endlich on the Int. of Stat., sec. 365, chap. 4, sec. 73, sec. 264, 265; Bowman v. State, 93 Ark. 168; Garland Power & Dev. Co. v. State Board of R. R. Incorp., 94 Ark. 422; Snowden v. Thompson, 106 Ark. 517; State v. Trulock, 109 Ark. 556; Nakdimen v. Ft. Smith & Van Buren Bridge Dist., 115 Ark. 194; and other cases cited in 4th Crawfords’s Digest, p. 4677, sections 53, 54, 55. It is alleged in the complaint that the issues of bonds under Acts'166 and 178, supra, will cause the indebtedness of the district to greatly exceed the benefits assessed against the lands of the district, but no facts are allege'd to show that such is the case. In Moore v. Board of Directors of Long Prairie Levee Dist., supra, we held that the courts cannot review “merely on general allegations that the assessments are arbitrary, excessive, and confiscatory.” Facts must be pleaded which show that the decision of the law makers was not merely erroneous, but that it was manifestly outside of the range of the facts. ■ In disposing of the allegations of the complaint on demurrer and ruling that act 178 of the Acts of 1919, supra, is not open to the objection here urged against it, we reserve our decision as to its validity if its constitutionality should be challenged on other grounds. Finding no error in the ruling of the court, its judgment is affirmed.