Bennett v. Johnson

• Court: Arkansas Supreme Court
• Writing for the Court: MCCULLOCH, C. J.
• Citation: Bennett v. Johnson, 197 S.W. 1148, 130 Ark. 507 (Ark. 1917)
• Decision Date: 22 October 1917
• Docket Number: 172
• Parties: BENNETT v. JOHNSON

197 S.W. 1148

130 Ark. 507

BENNETT v. JOHNSON

No. 172

Supreme Court of Arkansas

October 22, 1917

Appeal from Desha Chancery Court; Zachariah T. Wood, Chancellor reversed.

Decree reversed.

Rose Hemingway, Cantrell, Loughborough & Miles, for appellant.

1. The Legislature can do anything not prohibited by the Constitution, and all presumptions are in favor of the validity of an act.

The Legislature can create an improvement district embracing lands in more than one county. 89 Ark. 513; 92 Id 93; 102 Id. 560; 104 Id. 429; 120 Id. 277; 125 Id. 329; 96 Id. 410.

2. It can provide for the appointment of commissioners who are not residents of the county where a part of the road is to be improved. The Legislature is supreme and the Constitution does not prohibit it. 96 Ark. 410.

3. It can authorize road commissioners to improve that part of the road that passes through the towns. 120 Ark. 277; 118 Id. 119, etc.

4. The fact that the act, in describing the lands composing the district, duplicates the description of some tracts, does not invalidate it. Mere clerical or typographical errors are immaterial.

5. Section 36, which permits another road district to improve a part of the roads, does not affect the validity of the act. 113 Ark. 369; 121 Id. 16; 90 Id. 29; 97 Id. 334; 125 Id. 329.

6. The district is a local improvement district within the meaning of the Constitution, due process of law clause. 172 U.S. 269; 181 Id. 324, 341; 164 Id. 112; 170 Id. 304; 170 Id. 45; 59 Ark. 513; 72 Id. 119; 81 Id. 564; 70 Id. 451; 96 Id. 410, 416-17; 104 Id. 425; 98 Id. 113, 117.

7. The territory of the district is adjacent, compact, contiguous and continuous. 90 Ark. 29; 118 Id. 119; 122 Id. 191; 116 Id. 167. See, also, 120 Ark 230; 105 Id. 380; 126 Ark. 416.

E. E. Hopson, for appellees.

1. The act is unconstitutional and void, because in direct violation of article 7, section 28, Constitution of Arkansas. 89 Ark. 513; 92 Id. 93; 118 Id. 294.

2. A local improvement district must be composed of adjacent, compact, contiguous and continuous territory. 118 Ark. 119; 126 Ark. 416; 122 Ark. 419; 116 Id. 167; 120 Id. 230; 105 Id. 380.

3. The fact that the act duplicates the description of some of the lands invalidates it, because it can not be said what the intention of the Legislature was in this double description.

MCCULLOCH C. J. HART, J., dissenting.

OPINION

MCCULLOCH, C. J.

The General Assembly of 1917 enacted a special statute creating the "Arkansas-Louisiana Highway Improvement District," ^[*] for the purpose, as the name implies, of improving certain public highways running through the counties of Lincoln, Desha, Drew, Chicot and Ashley to the Louisiana State line, and appellees, who own real estate within the boundaries of said district, challenged the validity of said statute and instituted this action to enjoin the commissioners from proceeding under its terms. The chancery court sustained the contention of appellees as to the unconstitutionality of the statute and rendered a decree in their favor restraining the commissioners from proceeding under the statute, and an appeal has been prosecuted to this court from that decree.

The lands included in said district consist of more than 600,000 acres lying contiguous to the roads to be constructed, and composing parts of each of the counties specified above. The roads to be constructed are in the aggregate approximately 150 miles in length, and run through each of the counties named. The main stem, if that term may be used in describing the road, runs from a point near Varner in Lincoln County to a point near McGehee in Desha County, following the line of the railroad of the St. Louis, Iron Mountain & Southern Railway Company, passing through the towns of Varner, Dumas, Winchester and other towns along the route. The road then forks at McGehee, and one prong runs southwesterly, substantially parallel with the line of road of the said St. Louis, Iron Mountain & Southern Railway Company, through the towns of Blissville, Morrell, Portland, Parkdale, Wilmot, and other towns, ending at the southern boundary line of the State, near the town of Cypress; and the other prong runs southeasterly from McGehee, substantially parallel with the line of road of the Memphis, Helena & Louisiana Railway Company, through the towns of Trippe, Halley, Lake Village, Eudora, and other towns, and ends at the southern boundary line of the State near the town of Arkla. Another road runs east from Trippe to Arkansas City, the county site of Desha County, and another runs east from the town of Dermott on the line of the St. Louis, Iron Mountain & Southern Railway Company to the town of Halley on the Memphis, Helena & Louisiana Railway. All of these roads are described in said statute as being public roads as now established by the county courts of the respective counties, or as they may be changed by the said county courts for the purpose of straightening the roads before the construction of the improvement. The lands in the district are accurately described in the statute by sections, but there is an error in the statute in that a number of sections are duplicated in the description. The statute provides, in substance, that there shall be ten commissioners of the district; two of them to be appointed by the county court, or the judge in vacation, of each of said counties; that the board of commissioners shall form plans for the construction of the roads, said plans first to be submitted to and approved by the State Highway Department, and then to be submitted to and approved by the county courts of each of said counties, so far as concerns the roads in each of the respective counties; and that when the plans have been so approved and adopted, and the cost of the improvement ascertained, there shall be an assessment of benefits to the lands included in the district, and that the cost of constructing the improvement shall be assessed against said lands in proportion to the benefits to be derived. There is also a provision in the statute to the effect that if it is ascertained that other lands not embraced in the district are found to be specially benefited by the improvement, the county court of the respective counties in which said lands lie may, upon petition of the board, and after due notice is published, make orders including such lands in the district. There is the usual provision for the issuance of bonds and for the enforcement of assessments against the lands in the district.

Counsel in the case agree that the attack upon the validity of the statute involves a consideration of the following points:

First. Can the Legislature create a road improvement district embracing land in more than one county to improve a defined public road situated in more than one county?

Second. Can the Legislature authorize the commissioners to improve the road through towns?

Third. Can the Legislature appoint commissioners who are not residents of the county where a part of the road is to be improved, and give them authority to improve the road in that county according to plans approved by the county court of that county?

Fourth. Does the project constitute a single, local improvement, and result in special benefit to the lands to be taxed, so as to justify taxation of those lands to pay for construction of the improvement?

Fifth. Does the fact that the act, in describing the land composing the district, duplicates the description of some tracts, invalidate the act?

Sixth. Does the fact that section 36 of the act permits another road improvement district to improve a part of the roads to be improved under this act affect the validity of the act?

The points will be discussed and determined in the order stated by counsel.

1. The first point involves little difficulty, for county and other municipal lines are not taken into account in the formation of local improvement districts, the question being whether or not the project constitutes a single local improvement regardless of its particular relation to such boundary lines. There is no express limitation in the Constitution upon the creation of improvement districts, except as to those situated wholly within cities and towns, and we have held that the constitutional provision has no application to districts situated partly inside and partly outside of cities and towns. Butler v. Fourche Drainage Dist., 99 Ark. 100. The power to include parts of two counties in an improvement district seems to have been definitely settled by this court in the case of Shibley v. Fort Smith & Van Buren District, 96 Ark. 410, 132 S.W. 444, where we upheld the validity of a district organized to construct a bridge across the Arkansas river where it forms the boundary line between Sebastian and Crawford counties, and which included lands in both of those counties. Counsel for appellees argue that there is a distinction between that case and the present one in that the former involved the erection of one bridge which connected the two counties, and that the lands in each county were assessed according to benefits, to pay its part on the bridge, whereas in the present case the roads run through different counties, and the effect is to tax the lands in one county to construct the road in another. We do not, however, think that the distinction sought to be made by counsel is to be found in the two cases, for the construction of all the roads constitutes a single improvement; at least, they must be so treated if the statute is to be upheld at all, and the taxes are levied on the lands in the several counties for the purpose of contributing to the expense as a whole, and not to any particular part of the road. The statute in question does not invade the jurisdiction of...