Young v. Red Fork Levee District , 124 Ark. 61 ( 1916 )

McCulloch, C. J.

Appellee is a levee district created by special statute enacted by the General Assembly of-1891,* and appellants are severally the owners of tracts of land through which a portion of the levee was located and constructed during the year 1914. The right-of-way for the levee was condemned and damages to the owners assessed pursuant to the terms of the Act of February 24, 1905, entitled “An Act to provide a method for the exercise of the right of eminent domain by levee, drainage, and ditching districts. ” Acts 1905, p. 143, Act No. 53.

(1) Appellants contend that the Act of 1905 is, in the first place, inapplicable to the Red Fork Levee District for the reason that the Act of .1891,^* creating that district, and the amendatory Act of 1893,^† provided a different method of condemnation; and also contend that the Act of 1905 is void in some respects which affect the validity of the present proceeding. The language of the Act of 1905 is peculiar in that it provides thát “the board of directors of the St. Francis Levae District, and all other levee and drainage districts organized under the laws of the State of Arkansas, are hereby authorized,” etc. That language is found in the initial sentence of the first section of the act, and the same language occurs in section 8, which confers certain powers on “the board of directors of the St. Francis Levee District, or any other levee or drainage district.” It is difficult to understand just what was in the legislative mind at the time this language was used, but when the ordinary effect is given to the words “all other levee and drainage districts organized under the laws of the State of Arkansas,” it renders the preceding designation of the St. Francis Levee District purely surplusage, for that is one of the levee districts organized under the laws of Arkansas (a special statute) and is included within the general description. The statute is, in other words, a general statute applicable to all levee and drainage districts in the State, and we have so v decided in another case. Russell v. Board of Directors of Red River Levee District No. 1, 110 Ark. 20. The Red River Levee District was created under a special statute of the State, and in that respect was like the St. Francis Levee District.

It has been suggested in argument that the fact that the lawmakers saw fit to insert the name of the St. Francis Levee District 'indicated that the general words used were intended to be applied only to levee and drainage districts created pursuant to general laws of the State, and not to.those created by special statutes, and that it was necessary to designate that particular levee district in order to bring it within the terms of the statute. We do not think that that is the proper interpretation of the language of the act, for it is too general an expression to be open to that interpretation. If the statute amounts to a general one, which is applicable at all to levee and drainage districts other than the one especially mentioned, it necessarily includes all that are created by or under the laws of the State, whether pursuant to special statutes or pursuant to the general statutes authorizing the formation of those districts. It is proper to consider the title of an act for the purpose of determining its true meaning, and we find that in the title of this act language is employed which refers to all levee and drainage districts generally and not a particular one. It is true there is certain language in section 9 of the act, declaring that ‘ ‘ all lands bordering upon and near the Mississippi River shall be subject to public servitude,” which might be construed as referring only to levee districts organized for the purpose of giving protection from flood waters of the Mississippi River, but we can treat that language as only applying to levee districts along the Mississippi River without impairing the general force of the statute in its application in other respects to all other districts in the State. We are convinced, therefore, that the lawmakers intended to include all levee and drainage districts in the State, or at least that the language used by the lawmakers is susceptible only of that interpretation.

(3) When the act is thus construed, it necessarily repeals the special provision in the Act'of 1891,^* creating the Red Fork Levee District, and the Act of 1893^† amendatory thereof. Hampton v. Hickey, 88 Ark. 324. Those statutes which apply especially to the Red Fork Levee District contain no provision for condemnation other than proceedings to be initiated by the land owner for the assessment of damages. The act seems to contemplate that the directors shall have full authority to locate the levee, and that the initiative is on the land owner to institute proceedings to secure an assessment of damages. It provided that notice should be given by the land owner and that a jury should be then summoned to assess the damages. The statute also provided that that remedy should not be exclusive, but that the land owner could choose the common law right of action to recover damages for the trespass. We are of the opinion, however, that that statute was repealed by the Act of 1905 which applies to all such districts organized under the laws of the State. The Act of 1905 gives authority to levee and drainage districts to condemn rights-of-way through lands of private owners for the purpose of constructing the improvement, and provides, in substance, that on the written application of the president or secretary of any such district, the judge of the circuit court of the county shall appoint three disinterested resident land holders of the county as appraisers to assess damages, and that when the route of the right-of-way is selected, and whenever, it becomes necessary to “take or use or appropriate any rigbt-of-way, land., material, or other property for levee,'drain, ditch, or canal purposes-hereinbefore mentioned, or when the same has already been entered upon by them,” then such district, acting through its proper officers or agents, may file a petition with the clerk of the circuit court of the county, describing the property taken or proposed to be taken, and thereupon the said appraisers shall proceed to assess the damages and make an award in writing and file the same with the clerk of the circuit court. The clerk is then required to issue a summons to the sheriff commanding him to serve the owner or owners, if they reside in the county, and make return thereof; but that “if ¡such .owner, or owners, be nonresidents of the county, or unknown to the officers of the levee or drainage district, it .shall be the duty of the clerk to publish a warning order in some newspaper published in the county, for four insertions, which warning order may be in the following form:

“To (name supposed owner )and all other persons having any claim or interest in and to the following described land, situated in................ County, Arkansas: namely (here describe the land .over which the levee or drainage passes according to IT. S. Surveys) are hereby warned to appear in this court within thirty days, and file exceptions to the award which has been filed in this office by the levee and drainage appraisers of this county for the appropriation of the portion of the hereinbefore described land, for the construction, or intended construction of a levee, ditch, canal, or drain, as the case may be over and across the same.”

The act then further provides that if no exceptions be filed by the owners within ten days after service of summons, or within ten days of the date of the last publication of the warning order, “the court shall proceed to enter a judgment condemning such property and land for the right-of-way purposes, and a judgment in favor of the owner, or owners, of such land against the levee or drainage district for the amount awarded by such appraisers;” but that if exceptions be filed witbin the time aforesaid, and trial is demanded by either party, the question at issue shall be tried “as other common' law cases are tried, and the owner, or owners, of the land shall'be entitled to recover the value of the land appropriated, or intended to be appropriated,” etc.

Section 4 of the statute contains the following provision with reference to payment of award: “But, in the event the owner, or owners, of such land, material, or property being unknown, or if it is uncertain who they are, or if there are conflicting claims to the land, or to the award, or any part thereof, then the said levee or drainage district shall pay the same to the clerk of the chancery court of the proper county, for such owner, or owners, and take the clerk’s receipt, as provided herein from the owner, and shall have the same recorded in the book provided for the recording of petitions; that said clerk and his sureties shall be answerable for the safe keeping of said money. That any claimants to Said land may file an application in the chancery court, and set up title to said land or property, and after giving notice to all adverse claimants by summons, if residents of the county, and by warning order, if nonresidents .of the county or unknown, shall have their claim to such money adjudi-. cated and tried as other cases are tried under the rules and practice of the chancery court, and upon a final hearing the chancery court shall direct a proper disposition of the money, which judgment shall be a bar to a recovery against the levee or drainage district for any other or further compensation or damages for the construction or maintenance of such levee, ditch, drain or canal.”

(4) The proceedings in the present case are not satisfactorily abstracted by the attorneys on either side, but we understand from the meager abstract furnished that the provisions of the statute were strictly complied with in the present proceedings. Appellants were nonresidents of the county, and a warning order was issued which described the lands as required by the statute. S. B. Anderson, one of the appellants, owned a tract óf. land proceeded against, but in the warning order the Anderson-Tulley Company, a corporation of which appellant/ Anderson was a stockholder and officer, was! named as the supposed owner of the tract. None -of the appellants appeared within the time authorized for filing exceptions, and as to them there was final judgment entered by the circuit court approving the award of the appraisers. They appeared later, however, and filed petitions demanding a trial by jury. It is insisted on behalf of appellant Anderson that the judgment was void, and that he is entitled to a trial by jury, because of the giving of the wrong name as owner. It will be observed that the statute authorizes proceedings in rem against the lands of nonresident owners and unknown owners, and that it does not require that the name of such nonresident owner be correctly given in the warning order. On the contrary, the statute provides for the insertion of the name of the supposed owner, ;and it necessarily follows that any error in the mention of the name does not affect the validity of the proceedings. -

That portion of the proceedings relates only to the condemnation and assessment of damages, and not to subsequent proceedings for the ascertainment of the identity of the persons to whom the money should be paid over. If the district pays the money to the wrong person, it does so at its peril, for the statute provides that if there is any uncertainty about who the real owner is, the money must be paid over to the clerk of the chancery court where proceedings are authorized in the nature of an equitable interpleader to bring in all persons who can assert an interest in the funds. The district can protect itself, therefore, by complying with that part of the statute, but, as before stated, if it voluntarily pays the money over to a supposed owner it does so at its peril for it must determine who is the real owner notwithstanding its inability to ascertain with certainty who the owner is.

(5) We discover no reason for declaring this legislative provision invalid. It is contended that its provisions wrongfully deprive the owner of a trial by jury for the ascertainment of damages, but the answer is that th*e act itself provides that there shall be a jury trial in the event the owner appears within the time given and demands such trial. There is no express provision of our Constitution requiring the assessment of damages by a jury in this class of proceedings. The constitutional guaranty of trial by jury in condemnation proceedings relates only to condemnations by private corporations. Article 12, section 9, Constitution of 1874. In other words, the statute is valid in all respects material to this controversy because it gives the land owner a day in court by personal service if he resides in the county and is known, and by publication where it is a proceeding in rem; and also he is given a day in court by proper service of summons or warning order in the event of uncertainty as to ownership and the payment of the money to the clerk of the chancery court. Every constitutional requirement is therefore covered in the statute.

(6) The statute is criticised because of its failure to provide expressly upon what information the. clerk shall issue the warning order for nonresidents and unknown owners. The statute, as before mentioned, provides for personal service upon owners who reside in the county, but merely states that “if such owner, or owners, be nonresidents of the county, or unknown to the officers of the levee or drainage district, it shall be the duty of the clerk to publish a warning order,” etc. In ordér to give jurisdiction, there must be an allegation concerning the ownership of the property so that the clerk can determine whether there shall be issued a personal summons or a warning order. The abstract of the record made by appellants, who are the attacking parties, fails to show how the matter was brought to the attention of the. clerk, and we must assume, in the absence of a showing to the contrary, that all steps necessary to confer jurisdiction were complied with. There was no error, therefore, in refusing to grant appellants a trial by jury on their application made after the expiration of the time prescribed by the statute.

Affirmed.

* Act 93, p. 169, Acts of 1891. — (Reporter.)

† Act 146, p. 253, Acts of 1893. — -(Reporter.)

* Act 93, p. 169, Acts of 1891. — (Reporter.)

† 146, p. 253, Acts of 1893 — (Reporter.)