HART, J.,
(after stating the facts). (1) In the first place the chancellor held that the corporation was not organized in accordance with the statute so as to acquire thereby a valid existence and in this conclusion we think the chancellor was correct. Section 5576 of Kirby’s Digest provides that the order for the organization of incorporated towns shall be made by the county court. The record of the county court of June 24, 1907, shows that the court ordered July 29,1907, as the day to be fixed for the hearing of a petition relative to the incorporation of Ogden. Subsequently, however, the record shows that the court was adjourned until court in course. This superseded the former order and adjourned the court until the next term thereof. There was no regular term of the county court, of Little River County between June 24 and July 29, 1907. So the order purporting to have been made on- July 29, 1907, was made at a time when the county court of Little River County could not be in session and the proceedings purporting to be of that date were not judicial proceedings. When it was ordered on the 24th day of June, 1907, that the county court should be adjourned until court in course, the term lapsed and no further proceedings could be taken until the court met at a subsequent term pursuant to the statute.
(2-3) The order of the court organizing, the proposed territory into an incorporated town was null and void for the reason that the land was not of such character as could form an incorporated town. The record shows that the territory attempted to be formed into the town of Ogden ran parallel with the railroad track on both sides of it and was seven miles in length and about five miles in width. The railroad station of Ogden was situated on eighty acres of the land and there were afew residences on these eighty acres. Most of the remainder of the lands within the limits of the proposed town were timber lands and the remainder were agricultural lands. There were four lakes upon the lands within the limits of the proposed town. It was manifest that the owners of the lands could not. derive any benefits whatever from the lands being placed within the limits of an incorporated town. It appears from the record that the town was only incorporated for the purpose of organizing a single school district. Article 2, section 22, of our Constitution of 1874 provides that the right of property is before and higher than any constitutional sanction; and that private property shall not be taken, appropriated or damaged for public use, without just compensation therefor. Article 2, section 23, provides that the State’s ancient right of eminent domain and of taxation is therein fully and expressly conceded; and that the General Assembly may delegate the taxing power, with the necessary restrictions to the State’s subordinate political and municipal corporations to the extent of providing for their existence, maintenance and well-being, but no further. So it may be said that the right of taxation and the right of eminent domain rest on the same foundation. Compensation is made or secured when private property is taken in either way. When the State or municipalities take money or property for public use by taxation, the owner receives just compensation in the protection which is afforded to his life, liberty or property. It is evident that if there can be a case of taking private property for public use in the form of taxation under color of the organization of an incorporated town and without making compensation therefor, this must be regarded as one. It is perfectly plain from the record that the purpose of those signing the petition for the incorporation of the proposed town was to organize it into a single school district. They sought to bring within the taxing power of the proposed corporation the lands used for farming purposes or which were covered with timber and which were not needed for town lots and for which there could not be any reasonable anticipation of such use at any time within the future. The attempted organization of the proposed territory into an incorporated town was palpably wrong and was an arbitrary and unreasonable exercise of power. Under the circumstances, as they appear from the record, it is evident that the property of the railroad company is subject to the local burden of taxation solely for the benefit of others, and we think this is a case of taking private property for public use under the form of taxation without giving any protection or other compensation therefor. The attempted organization of the town of Ogden was therefore within the prohibition of our Constitution and was absolutely void. Vestal v. Little Rock, 54 Ark. 321; City of Covington v. Southgate, 15 B. Monroe (Ky.) 491, and Morford v. Unger, 8 Ia. 82. It follows that the proposed territory could not be organized into a single school district unless it was in an incorporated town. Kirby’s Digest, § 7668. . So it will be seen that if the question presented by this appeal had been raised immediately there would have been no trouble in disposing of the case under the principles of law above announced.
(4) As we have just seen, there was no bona fide organization of the municipality and no user of the charter in good faith afterward. The railroad company had, under the clauses of our Constitution above referred to, a vested interest in its property, and the whole scheme was under color of taxation, an appropriation of private property without compensation. Hence the railroad company might maintain the action.
But it is claimed that even if the corporation might have been declared illegal, had' proceedings for the purpose been begun within a reasonable time, that even the State would now be precluded by lapse of time and recognition of the corporation, from attacking its existence.
The leading case on this question is that of State v. Leatherman, 38 Ark. 81, where it was held that the State, by long acquiescence and continued recognition of a municipal corporation, was precluded from depriving it of the franchise long exercised in accordance with the general law. The court based its decision on the ground of public policy and the desire of the courts to sustain rather than defeat the validity of municipal corporations. The court after discussing at some length these questions of public policy, said:
“We are emboldened by them to declare in behalf of the public good, that the State herself may, by long acquiescence, and by continued recognition through her own officers, State and county, of a municipal corporation, be precluded from an information to deprive it of franchises long exercised in accordance with the general law. ’ ’
(5) In the case of Rainwater v. Childress, 121 Ark. 541, the court held with reference to private corporations that color of legal organization as a corporation under some statute and user of the supposed corporate franchise in good faith were indispensable to the existence of a de facto corporation. We think this principle is recognized in the ease of municipal corporations in the case of State v. Leatherman, supra, and in Black v. Brinkley, 54 Ark. 372. In each of those cases there was a bona fide attempt to organize the corporation which was followed for a period of years by user of the corporate franchise in good faith. This was recognized by the State, by the courts and by the public generally. Here the facts-are essentially different. There was no bona fide attempt to organize an incorporated town and there was no user of its franchise afterwards in good faith.
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HART, J.,
(after stating the facts). (1) In the first place the chancellor held that the corporation was not organized in accordance with the statute so as to acquire thereby a valid existence and in this conclusion we think the chancellor was correct. Section 5576 of Kirby’s Digest provides that the order for the organization of incorporated towns shall be made by the county court. The record of the county court of June 24, 1907, shows that the court ordered July 29,1907, as the day to be fixed for the hearing of a petition relative to the incorporation of Ogden. Subsequently, however, the record shows that the court was adjourned until court in course. This superseded the former order and adjourned the court until the next term thereof. There was no regular term of the county court, of Little River County between June 24 and July 29, 1907. So the order purporting to have been made on- July 29, 1907, was made at a time when the county court of Little River County could not be in session and the proceedings purporting to be of that date were not judicial proceedings. When it was ordered on the 24th day of June, 1907, that the county court should be adjourned until court in course, the term lapsed and no further proceedings could be taken until the court met at a subsequent term pursuant to the statute.
(2-3) The order of the court organizing, the proposed territory into an incorporated town was null and void for the reason that the land was not of such character as could form an incorporated town. The record shows that the territory attempted to be formed into the town of Ogden ran parallel with the railroad track on both sides of it and was seven miles in length and about five miles in width. The railroad station of Ogden was situated on eighty acres of the land and there were afew residences on these eighty acres. Most of the remainder of the lands within the limits of the proposed town were timber lands and the remainder were agricultural lands. There were four lakes upon the lands within the limits of the proposed town. It was manifest that the owners of the lands could not. derive any benefits whatever from the lands being placed within the limits of an incorporated town. It appears from the record that the town was only incorporated for the purpose of organizing a single school district. Article 2, section 22, of our Constitution of 1874 provides that the right of property is before and higher than any constitutional sanction; and that private property shall not be taken, appropriated or damaged for public use, without just compensation therefor. Article 2, section 23, provides that the State’s ancient right of eminent domain and of taxation is therein fully and expressly conceded; and that the General Assembly may delegate the taxing power, with the necessary restrictions to the State’s subordinate political and municipal corporations to the extent of providing for their existence, maintenance and well-being, but no further. So it may be said that the right of taxation and the right of eminent domain rest on the same foundation. Compensation is made or secured when private property is taken in either way. When the State or municipalities take money or property for public use by taxation, the owner receives just compensation in the protection which is afforded to his life, liberty or property. It is evident that if there can be a case of taking private property for public use in the form of taxation under color of the organization of an incorporated town and without making compensation therefor, this must be regarded as one. It is perfectly plain from the record that the purpose of those signing the petition for the incorporation of the proposed town was to organize it into a single school district. They sought to bring within the taxing power of the proposed corporation the lands used for farming purposes or which were covered with timber and which were not needed for town lots and for which there could not be any reasonable anticipation of such use at any time within the future. The attempted organization of the proposed territory into an incorporated town was palpably wrong and was an arbitrary and unreasonable exercise of power. Under the circumstances, as they appear from the record, it is evident that the property of the railroad company is subject to the local burden of taxation solely for the benefit of others, and we think this is a case of taking private property for public use under the form of taxation without giving any protection or other compensation therefor. The attempted organization of the town of Ogden was therefore within the prohibition of our Constitution and was absolutely void. Vestal v. Little Rock, 54 Ark. 321; City of Covington v. Southgate, 15 B. Monroe (Ky.) 491, and Morford v. Unger, 8 Ia. 82. It follows that the proposed territory could not be organized into a single school district unless it was in an incorporated town. Kirby’s Digest, § 7668. . So it will be seen that if the question presented by this appeal had been raised immediately there would have been no trouble in disposing of the case under the principles of law above announced.
(4) As we have just seen, there was no bona fide organization of the municipality and no user of the charter in good faith afterward. The railroad company had, under the clauses of our Constitution above referred to, a vested interest in its property, and the whole scheme was under color of taxation, an appropriation of private property without compensation. Hence the railroad company might maintain the action.
But it is claimed that even if the corporation might have been declared illegal, had' proceedings for the purpose been begun within a reasonable time, that even the State would now be precluded by lapse of time and recognition of the corporation, from attacking its existence.
The leading case on this question is that of State v. Leatherman, 38 Ark. 81, where it was held that the State, by long acquiescence and continued recognition of a municipal corporation, was precluded from depriving it of the franchise long exercised in accordance with the general law. The court based its decision on the ground of public policy and the desire of the courts to sustain rather than defeat the validity of municipal corporations. The court after discussing at some length these questions of public policy, said:
“We are emboldened by them to declare in behalf of the public good, that the State herself may, by long acquiescence, and by continued recognition through her own officers, State and county, of a municipal corporation, be precluded from an information to deprive it of franchises long exercised in accordance with the general law. ’ ’
(5) In the case of Rainwater v. Childress, 121 Ark. 541, the court held with reference to private corporations that color of legal organization as a corporation under some statute and user of the supposed corporate franchise in good faith were indispensable to the existence of a de facto corporation. We think this principle is recognized in the ease of municipal corporations in the case of State v. Leatherman, supra, and in Black v. Brinkley, 54 Ark. 372. In each of those cases there was a bona fide attempt to organize the corporation which was followed for a period of years by user of the corporate franchise in good faith. This was recognized by the State, by the courts and by the public generally. Here the facts-are essentially different. There was no bona fide attempt to organize an incorporated town and there was no user of its franchise afterwards in good faith. The incorporated town was attempted to be organized solely for the purpose of organizing a single school district. It was not organized for governmental purposes as is usual in the case of incorporated towns and there was not even a pretended user of the corporate franchise after the single school district was organized. The mayor left and became a resident of another place within about six months after the attempted organization. Most of the aldermen also left and there was no attempt to exercise any governmental functions within the proposed corporate limits until the fall of 1915, when an attempt was made to levy the taxes which formed the basis of this lawsuit. Under these circumstances it can not be said that any estoppel was created to attack the validity of the organization of the town.
(6) In the case of Attorney General v. Marr et al. (Mich.), 21 N. W. 883, it was claimed that long acquiescence in the action of the board of supervisors in the organization of a township estops the State from questioning the validity of the proceedings. The court held that the board possessed no power to organize a township in the territory mentioned at the time it attempted to do so and that regular proceedings in such a case would not give the township a legal existence. It was, therefore, held that the action of the board furnished no foundation for the estoppel claimed. The officers of the railroad company testified that they did not know anything about the attempted organization of the town. They admitted that they paid school taxes to the State and that their railroad ran through the county for a considerable distance. They testified that they had been accustomed to paying the school taxes on a mileage basis and thought that the territory in question 'still belonged to the school district in which it had formerly been situated. This action of the railroad company did not create an estoppel. Neither a town nor a county can acquire jurisdiction of a territory for taxing purposes by prescription. Russell v. Robinson, 153 Ala. 327, 44 So. 1040, and Inhabitants of Eden v. Pineo (Maine), Ann. Cas. 1913-A, page 1340, and case note.
It follows that the decree must be affirmed.