REASONS WHY
the
OVERFLOWED LAND IN ARKANSAS
SHOULD HOT BE TAXED.
In answer to numerous inquiries, I have adopted this method
of stating the reasons why the swamp and overflowed land in
Arkansas should not (and cannot) be taxed.
The constitution of the United States says : " Ho State shall Art x
pass any law impairing the obligation of contracts." ,sei"
The State constitution of Arkansas sanctions this restric- Declaration of
tion by declaring that "no law impairing the obligation ofR,ghts-sec 18
contracts shall ever be made."
Is there, then, a contract between the owner of swamp andtractfre a con
overflowed land and the State of Arkansas, as regards said
lands being exempt from taxes ?
The Supreme Court of said State, in a recent decision on supreme court
this subject, says: "We are clearly of opinion that the prop-cohtractere
osition made by the State and accepted by the purchasers, was
a contract." " There were competent parties, a sufficient con¬
sideration, and all the other elements necessary to constitute a
valid contract."
When did this contract become binding on the part of the
tract binding?
State ?
Whenever said State,by her authorized agents, entered into ™nt?c t<latUr
an agreement with any person or party to build levees or and drains,
drains to reclaim said land, promising to pay them for their
labor in land, or land scrip, as authorized by Act of the Leg¬
islature, approved 6th and 11th January, 1851, which Act be¬
ing a part of each contract, expressly provided that the land
so paid the contractor should be free from tax for ten years, or
Date of purchase
until reclaimed. The date of the certificate of the selection £0Vihcet,date oi
of his land, is only proof that the contractor had completed
his work to the satisfaction of the State agents, and conse¬
quently securing to him all that the State had pledged.
2
supremo court The language of the Supreme Court on this subject is:
so .1 cities. f Persons, relying on the good faith of the State, purchased
the land upon the terms proposed. Now, what did they get
as a consideration for their money or labor f Did they get
lands merely ? The answer is obvious—they not only got
lands, but with them the solemn undertaking of the State, that
they should be exempt from taxation for the period specified
in the Act of January, '51and also that these lands should
be reclaimed.
iiad a subse- Had a subsequent Legislature the power to alter the express
power^ to'sannlu condition on which contracts had been entered into for build-
«pfritettofrothte»e levees and drains, under the provision of the 14th section
contracts ? e 0f tpe Act of January, 1851, by imposing taxes on land pur¬
chased, or to be purchased, with scrip given in payment for
labor performed before the period of exemption provided for
in that section had elapsed, thus affecting the value of land
already purchased, and the $621,000 of land scrip that had
been received for work done, but not located, 11th January,'55 ?
\o. The Legislature had no such power!
a state has the In H>e decision of the Supreme Court, before referred to,, it
to^Kempt'"any 'ls said: "It has been repeatedly held by the highest authorities,
t y 6fr (mJ ax at i'onl both State and Federal, and is now settled beyond controversy,
that contracts made by a State exempting property from the
imposition of taxes, are valid and binding, and tnat by the
constitution of the United States such contracts, and the rights
of individuals growing out of them, are protected."
aelAaw cannJt Again : " If an act be done under a law, a succeeding Leg-
undone. islature cannot undo it."
And vested rights Again : "When, then, a law is in its nature a contract, a
repeal of the law cannot divest these rights."
Hence, the Act And again : " These lands cannot be taxed until after the
unconstitutiona 1 expiration of the period of exemption, and so much of the
and p^h 0f January, 1855, as provides they shall be, is
repugnant to the constitution of the United States, and void."
^Vlibtjds lli'6 date
•oaky after After what date of entrv can any land be taxed, under the
-which land can „ * , -i , -i t -< n i- r- n
be -taxed-, under act o± the 11th J anuary, 1855 r
The of Jan. J '
Slltt, '55?
Ho land entered with scrip before the 80th of March, 1857,
- .he can be taxed, for all land sold before that date was but carry-
Uet ofujnan"i,'55e. ing out to completion the contracts made by the State before
the repealing act of 11th January, 1855, for the simple reason
that on that date the Jirst scrip was issued on contracts made after
•the 11th of January '55.
viihold csnterqjd Much of the land entered after the 80th of March, '57, was
Vn™icV\ciUiexF scriP pAd 011 contracts, and cannot be taxed, unless
reclaimed.
^.rcciamationf What, then, constitutes eclamation ?
3
The Supreme Court, in their decision before referred to,
says; "The Act provided f^r the reclamation of the swamp The land is to be
and overflowed lands, and made it the duty of the commission- u
ers to determine the locality, extent and dimensions of the reciabimeadd t0 be
necessary levees and drains, in order to reclaim the lands,"—
(section 3d). Thus prescribing both the mode and extent of
the reclamation contemplated. The reclamation was to be by
means of levees and drains, and they were to be such as the
commissioners might determine to be necessary to accomplish
the end.
FTo other reclamation is mentioned, nor can any other be completion 0fthe
implied. The Legislature certainly did not mean to leave the if^i^fdraial
question of reclamation an open one, as to each particular tract a£y%^t°ot- tiic
of land, after the levees and drains provided for had been con- |fyidecjJaeimse®id t0
structed. "Whether all, or what part of the swamp and over¬
flowed land, can be made fit for successful cultivation, is, and
must be, in the physical nature of things, matter of doubt and
experiment. The Legislature provided for a general system
of reclamation, and prescribed what should be done.
Further than that it did not go. The term "reclaimed"
must be construed to have reference to that general system
and standard of reclamation?, and to nothing else.
Whenever, therefore, any of the levees and drains provided ^VandTrains
for by the Act were completed, the lands intended to be pro- ^ ^
tected or drained thereby were, within the meaning of the law, which
reclaimed.
Are the levees and drains completed ?
The levee engineer, David Thompson, in his last report to ®f Re»a ofVolTu
the commissioners, says: " The present system of levee above °f0 jS£nLearnd
the mouth of the St. Francis river, form an entire connection,for 185G-
and a gap at any intermediate point would inundate the whole
country in the rear of the levee built.
"There are gaps yet unfinished of about twenty miles, and?eveefnontneysAf
ten miles of levee which is too low and small, which will re- ten miles not iin-
require additional earth.
" I deem it especially advisable to suggest to your honora¬
ble board, the extreme necessity, therefore, of 'encouraging to
the fullest, the early completion of this portion of unfinished
work."
The joint committee of the Landed Interest of Arkansas, joint committee
in their report to the Legislature in January, 1857, speaking terest of Arkan-
of the whole State, say: ofSttfrccemiiifonss
"From the highest estimate presented to us from the re-ISngubo1 fatTo
ports of engineers, and from all sources, your committee are
has only r»claim-
satisfied the number of acres of land reclaimed by the work
hundred thous-
already done will not exceed two hundred thousand acres, and and acres<
it is likely not more than one hundred thousand acres, to effect pt hSe%;
which it has cost the State at least three million five hundred La0nnesstfye
thousand acres of land "—leaving three millions three hundred thou- but not b"-
4
sand acres to be reclaimed before the State shall have fulfilled her
contract with the purchasers of these lands ; and before the State
can, or ought to think about, taxing these lands ! ! !
thesereiands Te- It, t"heii, is an important question, ate these lands re¬
claimed? claimed?
There can be but one answer to this question : The levees
for no one has ev- and drains intended to be made by the commissioners to re-
tbe levees and claim these lands, have never been completed, as before shown,
completed. eenIf they were ever swamp or overflowed, they are swamp and
overflowed lands still.
They are proven As such they were selected by the State agents, and their
he mW eharacter affirmed to in the most solemn manner.- As such
aniTa mereac?of they were granted by act of Congress to the State of Arkan-
lhrmoteelchangl sas, on condition they should be reclaimed and made fit for
nothing' but1 the cultivation. The Legislature of Arkansas, in appointing com-
? ° ™?seandnd°rfajns missioners to fix the price of these lands, before they were of-
can do this. fered for sale, directed that they should take into consideration
„ „ , , their locality, "and the value that will be added to said lands by
feec. 3, Act Jan'y , , J? a i t- \
cth,'5i. reclamation. —(Sec. 3d, Act 6th Jan., 51.)
Thus the State actually receives from the-purchaser or con¬
tractor, the full price of reclaimed land, with a guarantee that
said land shall be free from tax until the levees and drains
necessary to reclaim the same are completed.
The system of levees necessary to the protection of said
land from overflow, has never been carried any where near
The system of completion, and the system of drainage, "which is of still more
platedghas"bl™n^mPor^ance' hardly been begun; consequently,.so long as
barely commen- this work of reclamation by the State remains unfinished, or
until the ten years expire for which time these lands were ex-
Hence, no tax. if empt from taxation by contract, as shown before, no tax can be
legally collected; collected by said State and, in justice to herself—to those who
and her own^in- have been induced by her to purchase her swamp and over-
that she should flowed lands—and in accordance with her own constitution,
levy a^tex6 on and the constitution of the United States-, as expounded by
sh^mimfsTer her own Supreme Court—she should not attempt to. impose a
|.ract, by reclaim- tax on "these lands until after the expiration of ten years, or
Dg them. until they shall have been reclaimed.
ETHEL H. PQKTER.
Memphis, June 1st, 1858.
BULLETIN PRINT—15 MADISON STREET.