Walker v. Roland Drainage District , 212 Ark. 633 ( 1948 )

This appeal presents a direct attack by a property owner on certain proceedings affecting the appellee district.

A brief review of the history of the district is necessary to understand the issues presented in this appeal. The district was organized in 1935 under the alternate levee and drainage statutes (4455, et seq., Pope's Digest). Even though the appellee was named a "drainage district," its purpose was to construct a levee to protect lands from overflows, and this is permissible for such a district (see 4489, Pope's Digest). The district comprised 7,086 acres possessed by 89 owners. The levee constructed in 1936 was found to afford inadequate protection; and in each of the years of 1938, 1941 and 1943, additional work was done on the levee. The benefits assessed in 1936 proved insufficient, it to finance the additional work; and in 1943 additional benefits were assessed. In 1945, a flood destroyed a portion of the levee, so that further work was imperative. The United States Corps of Engineers agreed to construct a new "set-back" levee if the landowners would provide the right of way.

Then came the proceedings here involved. In 1946, a map was made showing that 4,186 acres (of the original 7,086 acres in the district in 1936) would be protected by the new set-back levee. Thereupon, a petition, signed by the owners of 2,507 acres (of the 4,186 acres to be protected) was filed in the county court under the provisions of 4526-28, Pope's Digest. The petition prayed that the plans be revised, so that there would be a reassessment of benefits on the said 4,186 acres. The county court found that the petition was signed by a majority in acreage, and granted the order, which we refer to as the "revised plans order."¹ Appellant, as a property owner of a portion of the 4,186 acres affected (and also of other lands in the district) duly appealed to the circuit court.

An assessment of benefits (based on the revised plans) was filed. The county court confirmed the assessed benefits so filed, and made an order for the annual collection of 5% of the benefits. Appellant duly appealed to the circuit court from the said "benefits and levy order."

The circuit court affirmed the county court's "revised plans order," and also the county court's "benefits and levy order;" and appellant has appealed to this court.² The question now before us may be summarized: Did the 1946 petition — signed by the owners of 2,507 acres — contain a majority?

It is admitted by all parties that in the matters here involved the appellee has proceeded under the provisions of 4526, et seq., Pope's Digest, which sections are a part of Act 203 of 1927. This act has been before this court in several cases; some of them are: Indian Bayou District v. Dickie, 177 Ark. 728, 7 S.W.2d 794; Grady District v. Free, 178 Ark. 346, 10 S.W.2d 854; St. L. S. F. Ry. Co. v. Sub-district No. 1, 179 Ark. 567, 17 S.W.2d 299; Berry v. Cousart Bayou District, 181 Ark. 974,28 S.W.2d 1060; and Cox v. Drainage District, 208 Ark. 755,187 S.W.2d 887. In Cox v. Drainage District, supra, we held that, after the improvement originally contemplated had been made, if a new or additional improvement not in the nature of maintenance should be undertaken, then — under Act 203 of 1927 — there must be presented to the proper court a petition asking for the, new work, and said petition must be signed by a majority in value, acreage or number of the landowners in the district. In India Bayou District v. Dickie, supra, we held that the petition would be sufficient if it contained a majority of acreage or valuation or owners.

It is not contended that the 1946 petition here involved was signed by a majority in value or acreage or owners of the entire lands in the appellee district, but it is insisted that the petition is signed by the owns of a majority of the acreage of the lands to be benefited by the new levee: that is, the petition is signed by the owners of 2,507 acres of the territory of 4,186 acres to be benefited. Stated another way, the district contends that, the fact that the district contains 7,086 acres is immaterial, since only 4,186 acres will be protected by the proposed new levee, and will be taxed for the costs of the right of way, and therefore only the owners of a majority of the 4,186 acres need sign the petition. Furthermore, the district argues that the action of the commissioners approved by the county court, in assessing benefits for the new levee on only 4,186 acres (out of the 7,086 acres originally embraced in the district), in effect reduced the territory of the district so that only 4,186 acres are now in the district.

The circuit court agreed with the appellee, and made these findings: "(1) that the majority in value, acreage or number, refers to the news project; (2) the court construes 4528, Pope's Digest, to mean that there must be a majority in value, acreage or number of the new project; . . . (4) the court finds that it is not necessary that there be a majority in acreage and in value and in numbers of the old or original district; (5) that the word ``district' as used in this section means the new project and not the old or original district organized in 1935."

We cannot agree with the learned circuit court in the above-quoted findings. There is no provision in the statutes here involved which authorizes a change in the boundary lines of the district to be made in the manner here attempted. The sub-district procedure (see 4501, Pope's Digest) was not here followed or involved. Any district organized under 4455, et seq., Pope's Digest, is for the purpose of making a local improvement, with the costs to be paid by an assessment on the benefited lands. Such a district is of statutory origin, and it possesses only the powers conferred by the statute, plus those powers necessarily implied. Board v. Fleming, 93 Ark. 490,125 S.W. 132; Board v. S.W. Land T. Co.,112 Ark. 467, 166 S.W. 589; Keystone District v. Drainage District, 121 Ark. 13, 180 S.W. 215; Wood v. Drainage District, 110 Ark. 416, 161 S.W. 1057; and Shewmake v. Hudson, 171 Ark. 739, 285 S.W. 382.

Appellee does not argue that there is any statute which empowers the court, in computing the acreage required on the petition, to exclude all lands in the district except those thought to be benefited by the new project. But appellee does argue that, since such exclusion is apparently equitable and fair, it should be sustained, even in the absence of statutory authority. We cannot agree. Courts must administer the law as it is written in the legislative enactments. Legislative authority, permitting the reduction of the acreage of an improvement district in the manner here attempted, might be expedient or desirable; but sufficient answer to the appellee's contention is this: The General Assembly has granted no such power; nor has it authorized any such procedure as appellee is here attempting to pursue.

Berry v. Cousart Bayou District, 181 Ark. 974,28 S.W.2d 1060, involved practically the same question as is here presented. We quote excerpts from the facts in that case:

"In order to protect the system of drainage contemplated, the board of directors upon petition of real estate owners alleged to be a majority of those to be benefited by the proposed improvement, but not a majority in either number, acres, or value of the owners of real property in the entire district, filed an application . . ., setting up the necessity for the proposed improvements describing the same and the plans for the construction of said improvement, . . . The assessment of benefits was not on the entire lands of the district, but was an additional assessment of benefits against the lands which the assessors found would be benefited by the proposed improvement."

Under these facts we held — inter alia — that the petition for the "revised plans order" must be signed by a majority in number, or acreage, or valuation of the entire district, and not merely by a majority of those in the territory alleged to be affected by the revised plans order. We adhere to that holding.

It follows that the circuit court erred in affirming the orders of the county court involved in this appeal. The judgment of the circuit court is reversed, and the cause remanded, with directions to enter an order reversing and setting aside the said orders of the county court of May 16, 1947, here involved, and remanding the case to the county court with directions for further proceedings not inconsistent with this opinion.

¹ We secure these words "revised plans" from 4528. Pope's Digest.

² The district exercised the power of eminent domain, and has taken a portion of appellant's land for the new set-back levee. That condemnation suit appears to be pending in the circuit court. This present opinion does not directly affect that litigation; for all that appears in this record, the district may obtain elsewhere ample funds to obtain the right of way.