DISSENTING OPINION. I cannot agree with the opinion of the majority in this case for the reason that I think the decision violates the Constitution of the United States and also the Constitution of the State of Arkansas. The testimony, as I view it, shows conclusively that the lands of appellants are not only not benefited, but will not be benefited by the improvement. According to my view of this case, it is a taking of appellant's property without any compensation whatever. I think that the testimony conclusively shows this, and the decision of the court therefore violates the provisions of the Constitution of the United States, above mentioned, and violates the provisions of the Constitution of Arkansas.
Section 22 of article 2 of the Constitution of the State of Arkansas provides:
"The right of property is before and higher than any constitutional sanction, and private property shall not be taken, appropriated or damaged for public use without just compensation."
It is said in the majority opinion:
"The affirmative showing is made that the improvement authorized by the special act of 1920 was never completed. The straightening and deepening of the channel of Cache River was begun, but the work stopped about 7 or 8 miles from appellant's lands. This appears to have been due to the failure of the bank in which the funds of the district were deposited, and appellants insist that, inasmuch as the proposed improvement authorized by the act of 1920 has not been completed, and may never be completed, the proposed improvement cannot be taken into account in determining whether the lands will be benefited."
The answer to this contention is that the assessment of benefits was based upon the assumption that the *Page 388 improvement authorized by the act of 1920 would be completed, and the assessment cannot be defeated because this was not done.
In other words, as I understand the majority opinion, you can take one's property without any compensation whatever, if you base the assessment upon the assumption that an improvement will be made, and on the further assumption that it will benefit your lands. Such is not the meaning of the Constitution as I understand it.
The following cases are then cited in support of the declarations above set out by the majority opinion: Solomon v. Board of Directors, etc., 100 Ark. 336, 140 S.W. 585; Road Imp. Dist. No. 3 v. Morris, 153 Ark. 635, 241 S.W. 389; Hunt v. Road Imp. Dist. No. 12, 168 Ark. 266, 270 S.W. 961.
I do not understand the above cases support the doctrine announced by the majority in this case. The first case cited is where the parties did not contend that they would not be benefited by the improvement, but the contention there made was that the appellant's land had not been benefited by that portion of the improvement already made, and that they could not require taxes to be paid by one until the improvement had been so far completed that his lands would be benefited. It was not contended in that case that the improvement would not benefit his lands, and it was not contended that the improvement had been abandoned. The only contention was, as I understand it, that the improvement had not gone far enough at that time to benefit appellant's land.
The court said that the scheme contemplated by the creation of the district was for the construction of the levee as a whole, and the benefits were to accrue from the consummation of the PI an. And the court further held, in effect, that to fail or refuse to collect taxes until the entire improvement was completed and everybody's lands in the district benefited, would frustrate the whole scheme, because, under a view like that, the improvement *Page 389 or construction work could not be begun until all the funds were raised for the purpose. And, according to appellant's contention in that case, you could not raise any funds until the work had been done.
The next case referred to by the court to sustain the proposition, was a road district created under the Alexander Road Law, where there was authority to reassess, and it does not seem to me that it supports the decision in this case.
And in the next case referred to by the opinion, I do not think that the same question was decided that is involved in this case. In fact, I do not know of any decision of any court that has held, where the proof shows that no benefits have or will accrue to one's lands, that it can be assessed at all.
This court has repeatedly held that the only theory upon which assessments can be collected is the theory that the benefits accruing from the improvement is equal to or greater than the amount of tax. I know of no decision of this court that holds to the contrary. And if any decision was to the contrary, it would certainly violate the provisions, not only of the Constitution of the United States, but of the Constitution of the State of Arkansas. If that theory is true, and it will not be disputed, then how can the fact that the bank failed, and money belonging to the district was lost, justify an assessment against appellant's lands unless they are benefited in some way?
In a case in the Federal court it was contended that something over 10,000 acres of land would receive no benefits, and the district judge stated as follows: "So the question we are called upon to determine is whether the facts in this case show that there is no benefit, either direct or indirect, to the land in controversy, or, if indirect, that it is so remote that it is purely speculative."
Numerous authorities are cited, and the Court of Appeals, after quoting the above statement, continued:
"And thereupon the court held that the facts do not overcome the presumption arising from the assessments that the lands would receive benefits. The case made by *Page 390 the plaintiffs on the facts was not that all the 10,320 acres would not receive benefits, but that parts of the tract would not receive benefits, some being at too high an altitude and some too low to be affected by the improvement; and we think that claim was clearly established, and that the court fell into error when it denied plaintiffs relief.* * * It is contended that, when the system is put through, it will permit the drainage of the lower lands on the east side of the lake into the lake. We do not see how that may be so, inasmuch as the proposed plan will not reduce the waters in the lake to a lower minimum level than they now have, nor how the swamp lands in the tract could receive any benefit if protected from overflow by the system. * * * On the whole, we are convinced from this record that much of the land lies at such elevation that the system when completed will be of no benefit to it." Kansas City Life Ins. Co. v. Chicot County Drainage Dist., 5 F.2d. Series 605.
The proof in this case shows that appellant's lands have not been benefited, that the scheme has been abandoned, and to make them pay any assessment at all under these conditions, I think, is taking their property without any compensation. I think the proof shows that, if the Cache River Improvement was completed, the only way it would affect appellant's land would be to somewhat reduce the depth of water on appellant's land during an overflow. In other words, if the Cache River improvement had been completed, the water from the overflow on appellant's land would not be quite as deep as it would without the improvement. But this improvement has been abandoned, and there is therefore, as I view it, no benefit accruing to appellant's land, and it should not be assessed, and the case should be reversed. *Page 391