{ "id": 1400034, "name": "Smith v. Garretson", "name_abbreviation": "Smith v. Garretson", "decision_date": "1928-04-02", "docket_number": "", "first_page": "834", "last_page": "840", "citations": [ { "type": "official", "cite": "176 Ark. 834" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "173 S. W. 403", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "116 Ark. 538", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1532289 ], "opinion_index": 0, "case_paths": [ "/ark/116/0538-01" ] }, { "cite": "110 S. W. 1031", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "86 Ark. 231", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1521517 ], "opinion_index": 0, "case_paths": [ "/ark/86/0231-01" ] }, { "cite": "105 S. W. 1073", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "84 Ark. 412", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1524402 ], "opinion_index": 0, "case_paths": [ "/ark/84/0412-01" ] }, { "cite": "96 S. W. 372", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "79 Ark. 236", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1495658 ], "opinion_index": 0, "case_paths": [ "/ark/79/0236-01" ] }, { "cite": "29 S. W. 752", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "60 Ark. 221", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1903752 ], "opinion_index": 0, "case_paths": [ "/ark/60/0221-01" ] }, { "cite": "181 S. W. 671", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "170 Ark. 908", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1371633 ], "opinion_index": 0, "case_paths": [ "/ark/170/0908-01" ] }, { "cite": "166 S. W. 955", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "112 Ark. 572", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1538847 ], "opinion_index": 0, "case_paths": [ "/ark/112/0572-01" ] } ], "analysis": { "cardinality": 544, "char_count": 11240, "ocr_confidence": 0.47, "pagerank": { "raw": 1.0201491161966221e-07, "percentile": 0.5450263702632856 }, "sha256": "9dc306f5bca125d3d950c3df5370d413e2fea2291565393705c2e7e74888ab45", "simhash": "1:e7d58453e3fc4544", "word_count": 1942 }, "last_updated": "2023-07-14T17:05:04.337082+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Smith v. Garretson." ], "opinions": [ { "text": "Wood, J.\nOn January 2, 1928, a petition was presented to the White County Court asking that the boundary lines of Levee District No. 1 he changed and that certain territory described in the petition he added to the district \u201cfor the purpose of constructing- and maintaining a levee for the protection\u201d of the lands described in the petition and all the lands which had already been included in Little Red River District No. 1. At the regular January term, of the White County Court the court found that notice was given to the resident landowners in the territory described in the petition more than ten days before the application for the change in the boundary lines by posting written notices in three public places in the limits of the district and the proposed addition thereto. The court further found that \u00a1an election had been duly and regularly held for the purpose of electing one director and assessor for the Little Red River District No. 1, and that one George Akers was elected director and Walter Heathcock was elected assessor.\nThis action was instituted in the White Chancery Court by L. A. Smith against T. H. Garretson, Swan Garretson and George Akers, as directors, and Walter Heathcock, L. A. Pryor and J. M. Garretson as assessors, of Little Red River District No. 1. The plaintiff alleged that he was a landowner and taxpayer of the district, and that an order was made annexing certain territory to the district, which order is set ont and made an exhibit to his complaint, and the \u00a1alleged annexed territory is described in the exhibit. He further alleged that the court ordered an election, after due notice, for the purpose of electing a director and also an assessor to fill vacancies in those respective offices, and that \u00a1at the election so held one George Akers was elected director and Walter Heathcock was elected assessor. He alleged that the directors and assessors were threatening to assess his lands and other lands in the district and to issue additional bonds to repair the levee, which was damaged by overflows, and that there was no provision under the law whereby the lands can he assessed and no right or authority in the assessors to assess the lands which had been annexed to Little Red River District No. 1. The plaintiff prayed that the defendants be enjoined from levying an assessment of benefits on his land.\nThe defendants filed a general demurrer to the complaint. The cause was submitted upon the complaint with its exhibits and the demurrer of the defendants. The court sustained the demurrer, and the plaintiff stood on his complaint and exhibits. The court entered a decree dismissing the complaint for want of equity, from which is this appeal.\n1. It will he observed that the cause was heard on the demurrer to the complaint. In \u00a1actions in equity exhibits to the complaint will be looked, to, on demurrer, for the purpose of testing the sufficiency of the allegations of the complaint. See Evans v. Pettus, 112 Ark. 572, 166 S. W. 955; Moore v. Exelby, 170 Ark. 908, 181 S. W. 671. The complaint alleges that the county court of White County made an order annexing certain territory in which the plaintiff owned lands, and that the county court made \u00a1an order directing that an election he held for the purpose of electing a director of Levee District 'No. 1 and also to elect an assessor, and that the election was duly held, all of which was shown by an order of the county court, which was attached and made an exhibit to the complaint. When the recitals of the order of the county court are examined, it will be observed that the court, in making the alleged order of annexation and for the election of a director and an assessor, followed the procedure prescribed by the statute with reference to the formation of new or original districts as regards notice and election of directors and assessors. See \u00a7\u00a7 6814-6819 of Crawford & Moses\u2019 Digest. While the recitals of the order designate it as a petition for the annexation of territory and a change in boundary lines, these recitals further declare that the petition was presented asking that the boundary be changed and the territory described therein added \u201cfor the purpose of constructing and maintaining a levee for the protection of the above described lands, as well as all the lands included in said Little Red River District No. 1, to the end that all said lands shall be protected from overflow.\u201d\nThe recitals of the order of the county court upon which the appellant predicates his alleged right to enjoin the appellees from levying- an assessment of benefits on his land, and which recitals must explain and control any allegations of the complaint, really make it uncertain whether the purpose of the county court of White County was simply to lay off and form a new levee district with the same name and including the same territory as that embraced in Little Red River District No. 1 and also the additional territory as that described in the order of the county court, or whether the purpose of the court was to change the boundary lines of the district already existing so as to include therein new territory. However this may be, it is certain that the appellant\u2019s lands have been brought into the district under an order of the county court under the same notice and procedure which would have been followed if the county court had been really creating a new levee district instead of merely changing the boundaries of one already existing. 'Such being the state of the record, the trial court was not called upon to pass upon the constitutionality of the act of March 20, 1879, as amended by the act of March 1, 1889, as set forth in \u00a7 6813 of Crawford & Moses\u2019 Digest. Certainly the appellant is not in an attitude to contend that his lands were embraced in the district without notice to him, and that the act of March 1, 1889, is for that reason unconstitutional and void.\nIn Ry. Co. v. Smith, 60 Ark. 221-240, 29 S. W. 752-754, Judge Battle, speaking for the court, quoted from Judge Cooley on Constitutional Limitations, p. 231, paragraph 2, as follows: \u201cNeither will a court, as a general rule, pass upon a constitutional question, and decide a statute to be invalid, unless a decision upon that very point becomes necessary to the determination of the cause. While courts cannot shun the discussion of constitutional questions when fairly presented, they will not go out of their way to find such topics. They will, not seek to draw in such weighty matters collaterally, nor on trivial occasions. It is both proper and more respectful to a coordinate department to discuss constitutional questions only when that is the very lis mota. Thus presented and determined, the decision carries a weight with it to which no extrajudicial disquisition is entitled. In any case therefore where a constitutional question is raised, though it may be legitimately presented by the record, yet, if the record also presents some other and clear ground upon which the court may rest its judgment, and thereby render the constitutional question immaterial to the case, that course will be adopted, and the question of constitutional power will be left for consideration until a case \u00a1arises which cannot be disposed of without considering it, and when consequently a decision upon such question will be unavoidable.\u201d Such has been the unvarying practice of this court. See also Martin v. State, 79 Ark. 236, 96 S. W. 372; Sturdivant v. Tollett, 84 Ark. 412, 105 S. W. 1073; Road Imp. Dist. No. 1 v. Glover, 86 Ark. 231, 110 S. W. 1031.\n2. But learned counsel for the appellant contends that no express \u00a1authority is contained in the statute, \u00a7 6813, for the \u00e1ssessing of benefits against any land that may be added to an existing levee district by a change in the boundary of such district. We cannot concur in this view. The act of March '20, 1879, authorizing the creation of levee districts, provides for \u00a1a board of three assessors for such districts, whose duty it is, under the statute, to assess the benefits to accrue to the lands in such districts by reason of the levees to be constructed and maintained. This language, \u201cshall assess the value of lands in said district * * * and shall assess the value thereof,\u201d i. e., the benefit of the work or improvement made, is sufficiently comprehensive to include all the lands that may be embraced in any levee district that may exist as originally formed, and also any lands that may be subsequently added by a change in the boundaries of such district. The Legislature of 1889, in \u00a7 1 of the act approved March 1, 1889, after amending the act of 1879 so as to authorize the county court to lay off levee districts or change or order the boundaries of existing levee districts, further provided, in \u00a7 2 of the act, \u201cthat the said board of assessors shall make an assessment of the cost of said work upon the land situated in said district benefited by said work,\u201d etc. The Legislature of 1897 amended \u00a7 2 of the act of March 1,1889, so as to read as follows: \u201cSaid board of assessors \u2022 shall make an assessment upon the cost of said work upon the lands situated in said district benefited by said work and reported at s:aid meeting of landowners,\u201d etc. Then follow certain changes in the section not necessary to set out. See \u00a7\u00a7 4365, 4367, 4375 of Mansfield\u2019s Digest, and 4709 of S. & H. Digest, all brought forward and digested in \u00a7\u00a7 6813> 6815, 6823 and 6830 of Crawford & Moses\u2019 Digest. When these provisions of our statutes pertaining to levees are considered, it is clear that the assessors of all levee districts \u00a1are expressly authorized to assess the benefits to accrue to all the lands included in the district by the building and maintaining of the levee. A review of the statutes set forth above convinces us that the Legislature used the words \u201clevee district\u201d intending that they should, be applied to all the lands embraced in such districts, whether \u00a1as at first formed or created, or as such districts might exist should their boundaries be afterwards changed.\nFurthermore, even if the board of assessors were not expressly authorized to assess the benefits to the additional lands brought into the existing levee districts by change of boundaries, they would have such authority by necessary implication, because it is their duty, under \u00a7 6823 of C. & M. Digest, supra, to assess the value of the benefits to accrue to the lands by reason of the levee. This necessarily includes all the lands that may be embraced in any existing\u2019 levee district. Any other construction would cast an unjust \u00a1and discriminatory burden upon some of the lands in the district and defeat the purpose of the law in the creation of such improvements.\nIn West v. Cotton Belt District No. 1, 116 Ark. 538, 173 S. W. 403 (a levee district case) we held: \u201cIn the construction of statutes governing improvement districts, the grant of powers by the statute includes the incidental powers reasonably proper and necessary for carrying into execution the powers specifically granted.\u201d That doctrine applies here.\nThe decree is correct. Let it be affirmed.", "type": "majority", "author": "Wood, J." } ], "attorneys": [ "C. E. Tingling, for appellant.", "Brundidge & Neelly, for appellee." ], "corrections": "", "head_matter": "Smith v. Garretson.\nOpinion delivered April 2, 1928.\nC. E. Tingling, for appellant.\nBrundidge & Neelly, for appellee." }, "file_name": "0834-01", "first_page_order": 852, "last_page_order": 858 }