83 Ark. 54 | Ark. | 1907
Lead Opinion
(after stating the facts.) In Parsons v. District of Columbia, 170 U. S. 45, the following excerpt from Cooley on Taxation was approved by the court:
T. The major part of the cost of a local work is sometimes collected by general tax, while a smaller portion is levied upon the estates specially benefited.
“2. The major part is sometimes assessed on estates benefited, while the general public is taxed a smaller portion in consideration of a smaller participation in the. benefits.
“3. The whole cost in -other cases is levied on lands in the immediate vicinity of the work.
“In a constitutional point of view, either -of these methods is admissible, and -one may be sometimes just, and another at other times. In other cases, it may be deemed reasonable to make the whole cost a general charge, and levy no special assessment whatever. The question is legislative, and, like all legislative questions, may b-e -decided erroneously; but it is reasonable to expect that, with such latitude of choice, the tax 'will be more just and equal than it would be were the Legislature required to levy it by one inflexible and arbitrary rule.”
In the same case, Dillon on Municipal Corporations was likewise quoted, as follows:
“The courts are very generally agreed that the authority to require the property specially benefited to bear the expense of local improvements is a branch of the taxing power, or included within it. * * * Whether the expense of making such improvements shall be paid out of the general treasury or be assessed upon the abutting property or other property specially benefited, and, if in the latter mode, whether the assessment shall be upon all property found to be benefited, or alone upon the abutters, according to frontage or according -to the area of their lots, is, according to the present weight of authority, considered to be a question of legislative expediency.”
Following this decision came that of Norwood v. Baker, 172 U. S. 269, which seemed to many legal minds in conflict with Parsons v. District of Columbia, supra. So much of Norwood v. Baker as is pertinent to the issue here was quoted approvingly by this court in St. Louis Southwestern Ry. Co. v. Red River Levee District No. 1, 81 Ark. 562, as follows:
“But the power of the Legislature in these matters is not unlimited. There is a point beyond which the legislative department, even when exerting the power of taxation, may not go consistently with the citizen’s right of property. As already indicated, the -principle underlying special assessments to meet the cost of public improvement is that the property upon which they are imposed is peculiarly -benefited, and therefore the owners do not, in fact, pay anything i-n excess of what they receive by reason of such improvement. But the guaranties for the protection of private property would be seriously impaired if it were established, as a rule of -constitutional law, that the impositions by the Legislature upon particular private property of the entire -cost of a public improvement, irrespective of any peculiar benefits accruing to the owner from such improvement, could n-ot be questioned by him in the courts of the country.”
Subsequently, the Supreme Court of the United States, in a series of cases beginning with French v. Barber Asphalt Co., 181 U. S. 324, has apparently modified to a material extent much that was said in Norwood v. Baker; but the court believes that that the excerpt above quoted still meets with the approval of that tribunal. The rule laid down by the Supreme Court of the United States is correctly summed up by a recent writer as follows :
“In exercising its power, the Legislature may either act directly, determining the area benefited and the rate of apportionment absolutely; or it may delegate to local authorities the power to decide as to the necessity of the improvement, the area which will be benefited, and the rule of apportionment, and this delegation may cover all or any of these points. The Federal Supreme Court holds that the Legislature, acting directly, may determine the district benefited by a public improvement and lay down an absolute rule as to the apportionment of the expense among the parcels of land included. When this course is adopted, the act of the Legislature must be deemed conclusive alike of the question of the necessity of the work and of the benefits as against the abutting property, and to open such questions to review by the courts upon the petition of any and every.property holder would create endless confusion.” McGehee on Due Process of Law, 248.
But this must be taken with the exception indicated in Norwood v. Baker, which is stated in more recent cases to be that the courts will afford relief where there is “an abuse of'the law, an a.ct of confiscation, and not a valid exercise of the taxing power.” French v. Barber Asphalt Co., supra.
Again it is stated as follows: “Special facts, showing an abuse or disregard of the law, resulting in an actual deprivation of property, may give grounds for applying for relief to a court of equity, and this was thought by a majority of the court to have been the case in Norwood v. Baker.” Wight v. Davidson, 181 U. S. 371.
Again the court said, in reference to. the 14th Amendment in these matters:
“That that amendment legitimately operates' to extend to the citizens and residents of the State the same protection against arbitrary State . legislation affecting life, liberty and property as is afforded by the Fifth Amendment against similar legislation by Congress, and that the Federal courts ought' not to interfere when what is complained of is the enforcement of the settled laws of the State applicable to all persons in like circumstances and conditions, but only when there is some abuse of law, amounting to confiscation of property or deprivation of personal rights, as was instanced in the case of Norwood v. Baker.” Cass Farm Co. v. Detroit, 181 U. S. 396.
Therefore the only question is whether the allegations of this complaint show that the act of the Legislature is such an arbitrary abuse of the taxing power as would amount to a confiscation of plaintiff’s property without any benefit whatsoever, and thus bring the case within the doctrine of Norwood v. Baker as explained in later cases. The complaint is drawn in general terms, and should have been met by a motion to make more specific and certain, if more certainty was desired. But, the demurrer having admitted these general allegations, practically charging confiscation of property, and there being a specific denial of benefit, the court is constrained to believe that it is safer and more consonant to the justice of the case to overrule the demurrer and let a hearing be had as to whether there has been an abuse of the legislative discretion in charging these plaintiffs with the expense of a public improvement which would not benefit them, but injure them, thereby amounting to a confiscation of their property.
Reversed and remanded, with directions to overrule the demurrer.
Rehearing
ON REHEARING.
Opinion delivered May 23, 1907.
Appellee files a motion for the modification of the opinion, but really, asks the court to pass broadly upon some questions which it is not necessary, nor proper, to pass upon in order to determine the appeal.
One further point, however, may properly be decided as it is fairly raised, and that is as to the relief to be granted plaintiffs if the allegations of their complaint are proved.
The prayer of the complaint is as follows:
“Wherefore, the premises being seen, the plaintiffs and those who have a general and common interest with them in this suit pray that an injunction or temporary restraining order be issued restraining defendants, its agents, directors, attorneys and servants, from issuing or attempting to issue any bond or bonds or any certificate of indebtedness of any nature or kind whatever, and selling the same or attempting to sell the same that would in anywise affect the interest of these plaintiffs’ property as above stated; and -that said defendant be enjoined and restrained from letting any contract of any nature or character whatever to cut any ditch or build any levee in said drainage district above described that would in anywise whatever affect plaintiffs’ lands situated in above-named drainage district as aforesaid, and that any and all agents, attorneys, directors and persons whomsoever in the service or employ of said defendant in any capacity whatsoever [be enjoined] from doing so, together with all other general, special and proper relief.”
This is more than the allegations justify. Should the court find the allegations of the complaint true, the relief must be limited to restraining assessments and taxation upon plaintiffs’ lands to pay for the public improvement, and must not go to the extent of restraining the improvement itself and the bonding of the district as provided by the act, because the authorities quoted in the opinion show that the creation of the district (and of course its bonding) is within the legislative power; and the sole judicial question is whether this power operates so arbitrarily against plaintiffs as to amount to a confiscation of their property, to assess and tax their lands for an improvement which does not benefit them, but which injures them.