West v. Cotton Belt Levee District No. 1 , 116 Ark. 538 ( 1915 )

Hart, J.,

(after stating the facts). Section 4941 of Kirby’s Digest provides that the board of directors shall call a meeting of the land owners of said district at some place convenient to some part of the work. The meeting of the land owners in this case was called and held in the Board of Trade building at Helena, in Phillips County, a place outside the boundaries of the district. It is contended by counsel for the plaintiff that this rendered the whole proceeding void.

(1) The plaintiff did not charge the board of directors with any design to perpetrate a fraud in selecting the city of Helena as the meeting platee of the land owners. The only contention of counsel in this respect-is that the city of Helena is not within the boundaries of the levee 'district, and that the section of the statute above referred to contemplates that the meeting of the land owners shall be held within the boundaries of the district. The statute does not so provide. It provides that the meeting shall be held at some place convenient to some part of the work. It appears from the language of the complaint that the city of Helena was .situated near some part of the work which was contemplated to be done. Doubtless the city of Helena was designated by the board of directors because that was the most convenient place for the land owners to assemble.

It is conceded by counsel for the plaintiff that under section 4961 of Kirby’s Digest the board of directors had authority to levy and collect off the land reported as benefited by the assessors of the levee district, a tax not to exceed five mills on the dollar of the value of such lands as assessed for State and county purposes for the purpose of keeping the levees in the district in repair and to meet incidental and contingent expenses. But it is contended by them that the board of directors had no power to levy .the 72 per cent tax for the purpose of enlarging the levee, and providing banquettes along the same.

As we have already seen, the levee district in question was organized pursuant to the provisions of chapter 100 of Kirby’s Digest. The lands in the district were ■all situated in Phillips 'County. .Section 4927 of the Digest provides that the county courts of the several counties in this State containing lands .subject to overflow may divide the territory of their respective counties subject to overflow into one or more districts having' reference to the locality of the land and the character of the river front, including in each of said districts as nearly as possible all lands subject to overflow from the same crevasses or direction and which can be protected by the same system of levees.

Section 4929 provides a method (by which the districts may .be formed or altered.

Section 4938 pertains to the duties of the levee directors and reads as follows: “It shall be the duty of said board of directors to determine what work is necessary to be done, or levees to be constructed to protect their said district from overflow. They shall cause accurate surveys of al'l work deemed necessary by them, and accurate estimates and calculations, to be made by some suitable and competent engineer or other person, .who shall make a written report thereof, showing the amount, character, and kind of work, the exact location thereof and the probable cost thereof, and return the same with all plans and specifications to the board of directors.”

(2-3) It is a fundamental rule of construction that in statutes of this kind the grant of powers includes the incidental powers reasonably proper and necessary for carrying into execution the powers specifically granted. The purpose of the Legislature in framing the statute must be gathered from the statute as a whole, and if to effectuate the purpose intended a liberal interpretation must be reached, it is the duty of the courts to so construe' it; if, on the other hand, a literal interpretation would defeat the statute in whole or in part, such interpretation can not be given.

(4) In the case of an improvement district organized to pave a street or to build a road when the improvement has been accomplished the power of the improvement commissioners is exhausted and the improvement constructed by them is turned over to the city or county authorities. There is in such case no provision in the statute for a continuation of the board of improvement commissioners and their authority ceases when the improvement is accomplished. Under the provision of the statute in question, however, we think the authority given to construct the levees to protect the district from overflow is to be regarded as a continuing power.

Section 4938 of the Digest provides that it shall be the duty of the board of directors to determine what work is necessary to be done or levees to be constructed to protect the district from overflow. The act under which levee districts are organized provides for a continuation ■in office of the board of directors and other officers provided in the act. The purpose of the organization of the levee district in question was to protect lands in the district from overflows of the Mississippi River. The very nature of the ever shifting yet ever present danger ■of overflow from that river, against which the levee was intended as a guard, makes it imperative that the board should have the broadest latitude in dealing with the situation which confronted it. If the board did not have the power to perform the work in question, then the whole purpose intended to be effected by the statute would be defeated. The object of the statute'was to protect the lands within the district from inundation and devastation by floods and overflows which annually occur in the Mississippi River. It is well known that the rivers of this State and those upon its borders are constantly shifting their .channels and that their banks are constantly caving. For .this reason, the construction of the levee is never completed and work is constantly necessary to be done on it for the purpose of accomplishing the results intended by the organization of the levee district. If the power were exhausted bjr a single exercise the very purpose of the statute would be defeated. The work in its nature is continuing, and in view of the broadness of the terms of the statute, we are of the opinion that the powers granted by the statute have not been exhausted because the levee board had already established a levee.

(5) We are of the opinion that the terms of the statute are broad enough to confer upon the board of directors the power at their discretion to perform the work necessary to be done on the levee system for- the purpose of protecting the property of their district from loss and destruction by overflow.

There is no allegation in the complaint that the board proceeded arbitrarily or fraudulently.

It follows that the decree must be affirmed.

Kirby, J., dissents.