Park Corp. of Arkansas v. Tri-County Drainage District

Paul Ward, Associate Justice. Appellants, Park Corporation of Arkansas (a corporation), M. D. Parker, L. E. Burch, Jr., and Mrs. Lurlin F. Burch, are owners of real estate in St. Francis County. One appellee is the Tri-County Drainage District (hereafter referred to as Tri-County District) which was organized under the laws of this state about the year 1914 and embraces lands in Cross, Crittenden and St. Francis Counties, and another appellee is East St. Francis Drainage District No. 1 (hereafter referred to as District No. 1) which came into existence under the provisions of Act 371 of 1947 and embraces all the lands in St. Francis County which were originally in said Tri-County District. , Appellants brought this suit in the Chancery Court of St. Francis County seeking to have removed, as clouds upon their titles, certain assessments made by appellees against their lands, and to enjoin other similar assessments. The trial court sustained a demurrer to appellants’ complaint, and this appeal follows. The allegations in appellants’ complaint can be better understood in the light of an understanding of the statutory background of the two appellee drainage dis-triéts. Appellants do not question [except as hereafter noted] the legality of the formation of the Tri-County District. As stated above this district included lands in the three counties mentioned above, and it was empowered to make assessments and construct a drainage system for the benefit of the three counties. The Tri-County District continued intact until about the year 1948, during which time a drainage system was established and paid for by assessments against the lands in the three counties. During all this time assessments were made and the affairs, of the district were.administered by the Circuit Court of Crittenden County. • •. • In 1947 tlie Legislature passed Act 371 [now appearing in Ark. Stats, as Sections 21-577 to 21-582, inclusive]. It was under the provisions of this Act that District No. 1 came into existence, and the Act gave District No. 1 “the power to preserve the portion of the drainage system located in such [St. Francis] county as provided in Section 4481 et seq. of Pope’s Digest. . . .” Said Section 4481 grants to the district the power ‘ ‘ of preserving the same, of keeping the ditches clear from obstructions and of extending, widening or deepening the ditches from time to time. . . .” In Section 5 of said Act 371 [Ark. Stats. § 21-581] there is, however, a provision that the Circuit Court of Crittenden County shall have authority “to cause to be levied and collected a tax on all the lands of the original district for the purpose of paying the expenses incident to the cleaning out (but not for the purpose of extending, widening or deepening) existing ditches so as to provide an adequate outlet for the entire drainage system of the original district.” Appellants’ complaint. The complaint filed herein is somewhat lengthy and involved, but it contains, in substance, the following allegations: (a) The plaintiffs own lands in St. Francis County as stated above; (b) The appellee districts were organized as stated above, and the commissioners of said districts are made party defendants together with the county clerk and the collector of St. Francis County; (c) Tri-County District, under orders of the Crittenden County Circuit Court, and District No. 1, under orders of the County Court of St. Francis County, “both assert the right to make contracts for cleaning out and otherwise preserving” the identical ditches dug by Tri-County District, and have asserted the right “to levy and collect special maintenance taxes for such purposes”; (d) Tri-County District is now applying to the Crittenden County Circuit Court “for a levy of taxes annually upon its purported assessment to be expended for the cleaning out and maintenance of the same ditches in St. Francis County together with other of the original ditches in Cross and Crittenden Counties”; (e) One or the other of said assessments - (if not both)-is void and of no legal effect, bnt constitutes a cloud upon the title to appellants’ lands; (f) Tri-County District has no right to receive, handle or dispose of any taxes collected from lands in St. Francis County for the purposes mentioned; (g) The taxes collected by either of the drainage districts are expendable only for providing an adequate outlet for the drainage system as originally constructed, and the outlet for the entire system is in St. Francis County; (h) Tri-County District is about to enter into contracts for cleaning out and improving the outlet of the drainage system in St. Francis County; (i) The levies made by the Circuit Court of Crittenden County against the lands in St. Francis County are void because Crittenden County is in the Second Judicial Circuit of Arkansas and St. Francis County is in the First Judicial Circuit, and; (j) Appellants are entitled to an adjudication under the Declaratory Judgments Act. The prayer was: (a) That the clouds cast upon the titles to appellants’ lands by said assessments, liens and levies be removed, and; (b) That the clerk and collector of St. Francis County be restrained from placing upon the tax books, or endeavoring to collect any tax or assessment upon their lands. To the above complaint Tri-County District and its commissioners entered a demurrer on two grounds: (a) That there is another action now pending between the same parties in the Circuit Court of Crittenden County involving the same issues as raised by appellants, and; (b) That the complaint fails to state facts sufficient to constitute a cause of action. In sustaining appellees’ demurrer the trial court did not specify upon which ground it based its decision. We have concluded, however, that the court’s action was justified on the second ground mentioned above, and we will therefore not discuss the merits of the first ground. As we interpret appellants’ complaint, their main concern is that both districts are collecting [or attempting to collect] taxes on their lands in St. Francis County to clean out that portion of the drainage ditch in St. Francis County, and that Tri-Connty District is collecting [or attempting to collect] taxes on their lands in St. Francis County to clean out portions of the original ditch which lies in Cross or Crittenden County. We have-concluded that all of the above mentioned activities are permissible under the law. .Ref erring to the statutes mentioned above in their entirety, and in particular to those portions above set forth, we find that the County Court of St. Francis County had the power to make assessments against appellants ’ lands [in St. Francis County] to preserve that portion of the drainage system located in St. Francis County, to preserve the same, to keep the ditches clear from obstructions and to extend, widen and deepen the ditches. The substance of appellants ’ complaint is, in this connection, that District No. 1 was preparing to make contracts and use the tax money to clean out that portion of the ditch or canal which ran through St. Francis County. It is clear to us therefore that appellants have not, thus far, alleged any grievance from which they are entitled to equitable relief. Likewise it appears from Section 5 of said Act 371 [Ark. Stats. § 21-581] that the Circuit Court of Crittenden County is empowered to levy and collect taxes on appellants’ lands in St. Francis County “to clean out existing ditches so as to provide an adequate outlet for the entire drainage system of the original district. ” As we view appellants ’ complaint, this is exactly what they have alleged Tri-County District has done or is doing, because, in the absence of allegation to the contrary, we must assume that the words ‘ ‘ existing ditches ’ ’ embraces that portion of the main canal or ditch which runs through St. Francis County — in fact the complaint alleges this to he true. From the above we conclude therefore that both districts have a right to make assessments to clean out the main ditch or outlet in St. Francis County. Not only do the two districts have the powers mentioned above but we conclude that the spirit if not the exact letter of the statute gives Tri-County District the power to levy assessments against appellants’ lands in St. Francis County [along with all of the other lands in the other two counties which are embraced in the district] to pay the expenses of “cleaning out” an obstruction or obstructions in the main ditch or canal even though said obstructions are in Cross or Crittenden County. Obviously Act 371 of 1947 grants the original district the power to keep the main ditch or canal in all three counties cleaned and opened so that the system will be serviceable for all three counties, while at the same time the Act [by reference to Section 4481 of Pope’s Digest] gives District No. 1 the power [or option] to preserve and clean out that portion of the ditch in St. Francis County. As we have heretofore noted, the two districts had the authority to make the levies complained of. Appellants’ complaint makes mention of these levies by the Circuit Court of Crittenden County and the County Court of St. Francis County but does not state in what particular said levies are unlawful. In the absence of such allegations we must presume that the levies were made according to law. If, however, appellants had made allegations [which they have not clearly done] that the tax money [though lawfully assessed] was being used for an unlawful purpose, it would not follow that such assessments, lawfully made, are a cloud upon the titles to their lands. If either district makes an attempt to use the tax money for an unlawful purpose, appellants will then have an adequate remedy to prevent such attempted action. In this connection we point out that Tri-County District’s power is limited, and that it has no right under the statutes to levy a tax on appellants’ lands in St. Francis County for the purpose of digging additional ditches or for the purpose of preserving and cleaning out any existing ditches except the main ditch or canal which provides drainage for the entire district. Appellants contend that assessments made by the Circuit Court of Crittenden County against their lands in St. Francis County are null and void, notwithstanding the provisions in Section 5 of said' Act '371, because the Circuit Court of Crittenden County could have no jurisdiction [to make assessments] outside its own judicial district.. This contention on the part of appellants 'cannot be sustained. This court has heretofore recognized that where several counties are included in an improvement district it is necessary for the Circuit Court of one county only to have jurisdiction for the purpose of administering the affairs of the entire district. There is no direct constitutional prohibition against such jurisdiction and justification lies in the fact that Circuit Courts are the repository of all unassigned jurisdiction. In the case of Grassy Slough Drainage District No. 1 v. National Box Co., 111 Ark. 144, 163 S. W. 512, Chief Justice McCulloch, among other things, said: “The Circuit Courts of the state being the repository of all unassigned jurisdiction, it is within the power of the legislature to confer on them jurisdiction to determine questions relating to the organization of districts not local to a county.” Later, in the case of Russell, et al. v. Cockrill, Judge, 211 Ark. 123, 199 S. W. 2d 584, the court quoted with approval: “ ‘The Constitution prescribes, limits, and defines, with more or less accuracy, the jurisdiction to be exercised by all of the courts except the Circuit Courts, and instead of attempting to define their jurisdiction (other than appellate) leaves to them the great residuum of civil and criminal jurisdiction not distributed exclusively to other courts.’ ” The case of Lesser-Goldman Cotton Co., et al. v. Cache River Drainage District, et al., 174 Ark. 160, 294 S. W. 711, involved a drainage district composed of portions of Craighead, Jackson and Lawrence Counties [the former county being in one judicial circuit and the latter two in another]. The drainage district was organized under an act of the legislature by an order of the Circuit Court of Craighead County. In that case litigation came to this court over an attempt to extend the district to Poinsett County and this court said: ‘ ‘ The land of the district being in more than one county, the proceedings must necessarily be before the circuit court, as the statute provides, which procedure was followed in this case.” Appellee, Tri-County District, was also the appellee in the case of Dickerson v. Tri-County Drainage District, et al., 138 Ark. 471, 212 S. W. 334, and the court, among other things, there said: “The statute now under consideration confers jurisdiction on the circuit court where the lands are situated in several counties, and we have upheld the statute in that respect.” [Citing Grassy Slough District, supra]. A careful reading of the Dickerson case, supra, shows that it was necessary for the court, in reaching the conclusion it did, to pass upon the power of the Circuit Court of Crittenden County to organize the district embracing lands in two separate judicial circuits, and its authority to make assessments in all of the counties. In appellants’ complaint, but not in their prayer, they seek an adjudication under the Declaratory Judgments Act. By this, apparently, appellants’ objective was to have the court declare which assessment lien, if valid, was prior to the other, but this question has heretofore been considered by this court. See Board of Commissioners of McKinney Bayou Drainage District v. Board of Directors of Garland Levee District, 181 Ark. 898, 28 S. W. 2d 721; Howe v. Long Prairie Levee District, 187 Ark. 725, 62 S. W. 2d 10; Sanders v. Mhoon, 214 Ark. 589, 217 S. W. 2d 349; and Street Improvement District No. 419 v. Pinkert, 221 Ark. 265, 253 S. W. 2d 780. It follows, in view of what we have heretofore said, that the judgment of the trial court must be, and it is hereby, affirmed. Affirmed. Chief Justice Seamster and Justice McFaddin dissent.