Howard-Sevier Road Improvement District No. 1 v. Hunt

• Citation: 265 S.W. 517,166 Ark. 62
• Decision Date: 27 October 1924
• Docket Number: 193
• Parties: HOWARD-SEVIER ROAD IMPROVEMENT DISTRICT NO. 1 v. HUNT
• Court: Supreme Court of Arkansas

265 S.W. 517

166 Ark. 62

HOWARD-SEVIER ROAD IMPROVEMENT DISTRICT NO. 1 v. HUNT

No. 193

Supreme Court of Arkansas

October 27, 1924

Appeal from Howard Chancery Court; L. F. Monroe, special Chancellor reversed.

Decree reversed and cause remanded.

Lamb & Frierson, D. K. Hawthorne, Daily & Woods, and Rose, Hemingway, Cantrell & Loughborough, for appellants.

1. The decision of the Howard Chancery Court in the suit brought by Kennedy et al. is res judicata. 15 R. C. L. 1035; 151 Ill.App. 245; 28 Kansas 289-291; 13 S.C. 290; 35 Conn 526; 13 Wash. 141; 112 F. 705; 114 S.E. 689, 184 N.C. 471; 154 Ala. 242, 45 So. 586; 123 Ill. 122, 13 N.E. 161; 253 Ill 625, 97 N.E. 1092; 149 Ia. 345; 128 N.W. 533; 113 Ky. 864, 69 S.W. 763; 68 S.W. 15, 16; 127 P. 313; 16 How. 142; Crawford & Moses' Digest, § 1098; 158 Ark. 585.

2. The decree of the United States District Court in the case of Guardian Savings & Trust Company, Trustee, v Howard-Sevier Road Improvement District No. 1, is res judicata of the controversy attempted to be raised in this case. A judgment in a suit is a bar to any defenses that could have been pleaded, whether they were in fact pleaded or not. 19 Ark. 420; 41 Ark. 75; 41 Ark. 230; 76 Ark. 423; 105 Ark. 488; 119 Ark. 413. There can be no valid issue of bonds until a valid assessment of benefits has been made. 150 Ark. 94; 258 Ark. 378. It was the duty of the district therefore to set up in the Federal suit the fact that there was no valid assessment of benefits, if that was a fact; and when it failed to do so, and permitted a decree to enforce the mortgage upon the assessment of benefits, the district, and the property owners as well, lost the right to contest the validity of the assessment of benefits. I Freeman on Judgments, 4th ed., § 179; 2 Black on Judgments, 1st ed., 584; 162 P. 498; 82 Ore. 541; 89 Sou. 514; 216 Fla. 169; 258 S.W. 609; 134 Ark. 109; 142 Ark. 267; 137 Ark. 187; 152 Ark. 18; 148 N.W. 586; 96 Neb. 619; 176 S.W. 933; 165 Ky. 9; 250 S.W. 217; 113 N.E. 60; 273 Ill. 501; 184 S.W. 470; 59 P. 976; 9 Okla. 133; 98 N.W. 802; 125 Ia. 28; 17 S.W. 502; 106 Mo. 510; 168 U.S. 59.

3. The appellees in their testimony severally admitted that they knew of the assessment of benefits and of the time when it was equalized, and that they did not protest; that they knew that the road was being built, and voiced no opposition. They waited until the road was completed with the proceeds of the bonds and the contributions from the Federal Government and the State, and now, having received all the benefits and advantages of the improvement, seek to repudiate the debt. They are estopped. 55 Ark. 148, 155; 159 Ark. 84; 158 Ark. 59; 185 U.S. 1; 194 U.S. 553; 36 Okla. 234; 128 P. 308; 40 Okla. 474; 139 P. 273.

J. W. Bishop and Shaver, Shaver & Williams, for appellees.

1. To make a matter res judicata, these things are fundamentally necessary: identity of the thing sued for, identity of cause of action, identity of persons and quality in the persons for or against whom the claim is made. 34 Cyc. 1666. It is uniformly held that a decree only binds parties to the record, that the proceedings must be between the same parties, and that strangers to the record are not bound. 83 Ark. 154; 96 Ark. 451; 105 Ark. 86; 108 Ark. 574; 110 Ark. 494; 113 Ark. 380; 116 Ark. 501. A judgment is evidence of nothing in a subsequent action between different parties, except that it has been rendered. 96 Ark. 455; 35 Ark. 451; 94 U.S. 608.

Appellants rely solely upon a fiction of construction that appellees were parties to the proceeding wherein Kennedy and others were plaintiffs, when as a matter of fact they were not. A rule permitting any one to be deprived of property or the right to protect and defend it by a mere fiction of construction would violate and set at naught all protection guaranteed to the property owner by the Constitution. Art. 2, § 2, Const. Ark.; 49 Ark. 498; 64 Ark. 349; 77 Ark. 589; 117 Ark. 394. Persons who might have been made parties to litigation between strangers, but were not, are not bound by the judgment. 249 U.S. 246. See also 148 Ark. 629; 14th Amendment, U. S. Const.; art. 2, § 8, Const. Ark.

2. There is no merit in the contention that appellees are estopped. There is no question of repudiation of liability in the case, no personal obligation, liability or contractual rights are involved, but only the question of the validity and correctness of the assessment of benefits. The assessment of benefits is not a contract, but a remedy in which there are no vested rights. Page & Jones, § 166; 145 Ark. 441; 11 Supreme Court Reporter (U. S.), 790; 179 U.S. 489; 181 U.S. 34-42. See also 147 Ark. 290; 150 Ark. 567; 97 Ark. 43; 115 Ark. 97; 70 Ark. 451.

WOOD J. HART, J., dissenting.

OPINION

WOOD, J.

On the 23rd day of June, 1923, the Howard-Sevier Road Improvement District No. 1 of Howard and Sevier counties, Arkansas (hereafter called district), instituted an action in the chancery court of Howard County against delinquent lands. This case was numbered 211 on the docket of the trial court. The complaint alleged the organization of the district and the levying of assessments under the authority of the act creating the same and the failure to pay these assessments. The complaint set forth a list of the supposed owners and a description of the lands returned delinquent, together with the amount of the assessment and penalty set opposite the names. It was alleged that the assessments, penalties, interest and cost had not been paid on the lands mentioned. The prayer was that notice be given of the pendency of the action as provided by law, and that, unless the sums due were paid, a judgment be entered for the several amounts and for the sale of the lands described, to satisfy the same. After the institution of the suit, John C. Gardner, the receiver of the district, was joined as party plaintiff.

J. M. Hunt and others, taxpayers in the district, filed an answer denying the allegations of the complaint, and set up affirmatively that the commissioners of the district had wholly failed to comply with the law requiring them to obtain and file a certified copy of the list of lands alleged to be delinquent. The parties filing the answer as defendants in the above cause also instituted an action in the Howard Chancery Court against the district and its commissioners, for themselves and "all those who have a general common interest with them in this suit." This case was numbered 258 on the docket of the trial court. In their complaint they attacked the validity of the assessment of benefits as a whole, which the district and the receiver were attempting to collect, in their suit against the lands of the district. They set up in detail the causes which they alleged made the assessment as a whole invalid. They alleged in substance that the assessment of benefits sought to be charged against their lands was an arbitrary legislative assessment, the Legislature having ratified and adopted an invalid assessment made by the board of assessors under a void act; that the assessment was so excessive as to amount to a confiscation of property; that it was in excess of any possible benefit to the property by reason of the improvement, and was greater in amount than the value of all the property in the district; that the attempted assessment was by the zone system, in which none of the elements affecting the benefits to their property were considered; that they had never had a day in court to challenge the assessment of benefits. They alleged that they were not seeking to avoid or repudiate any just and legal assessment that might be made against their property by reason of the construction of the improvement; that they were ready and willing to submit to any just and proper assessment of benefits made in the manner provided by law. They prayed that the assessment of benefits now standing against their lands be canceled, and that the district be restrained from prosecuting the suit for the collection thereof, and that a reassessment of benefits by reason of the improvement be ordered, to the end that a fair, proper and legal assessment of benefits be ascertained and fixed.

The answer of the district and its receiver alleged the appointment of a receiver under the terms of the act creating the district, and set up and made an exhibit to the answer a copy of the decree of the United States District Court of the Western District of Arkansas, validating $ 380,000 of the bonds of the district "secured by first mortgage on the assessment of benefits." All of the allegations of the complaint were denied except as to the due organization of the district and the qualification of the assessors and the making of the assessment by them. The answer admitted that the assessment made by the assessors was under a special act passed at a special session of the Legislature, which session was declared void by the Supreme Court. They alleged that such assessment was afterwards validated by act No. 13 of the special session of the General Assembly in January, 1920 that, after the assessment was thus validated, a large amount of bonds were issued and sold and the proceeds used in the construction of the roads provided for under the original act creating the district and act No. 13, supra, amending the same. It was further alleged in the answer that on the 9th of April, 1921, T. G. Kennedy and others, for themselves and all other taxpayers in the district, instituted an action in the Howard Chancery Court against the commissioners as representatives of the district, and also in their individual capacity, in which suit they attacked the validity of the assessment of benefits as a whole, alleging that the same was arbitrary, discriminatory, and confiscatory, in violation...