Bush v. Delta Road Improvement District of Lee County

• Decision Date: 15 December 1919
• Docket Number: 56
• Citation: 216 S.W. 690,141 Ark. 247
• Parties: BUSH v. DELTA ROAD IMPROVEMENT DISTRICT OF LEE COUNTY
• Court: Arkansas Supreme Court

216 S.W. 690

141 Ark. 247

BUSH v. DELTA ROAD IMPROVEMENT DISTRICT OF LEE COUNTY

No. 56

Supreme Court of Arkansas

December 15, 1919

Appeal from Lee Chancery Court; A. L. Hutchins, Chancellor affirmed.

STATEMENT OF FACTS.

Appellants who are property owners within the proposed road improvement district, brought this suit in equity against appellees, who are commissioners of said proposed district, to enjoin them from proceeding to construct the road provided for.

Appellants set out in their complaint the several grounds which they claim render the district invalid and there is an agreed statement of facts filed by the parties to the effect that the allegations are true. The several grounds of objections to the validity of the district will be stated separately and discussed in the opinion.

The chancellor was of the opinion that the district was valid and it was decreed that the complaint should be dismissed for want of equity. The case is here on appeal.

Decree affirmed.

Roleson Gatling & Norton and Daggett & Daggett, for appellants.

1. The act is unconstitutional and void, because it gives the commissioners power to lay out and establish new public roads. 120 Ark. 277.

2. A large portion of the lands are inaccessible to the road and no benefits accrued, though they were assessed. 120 Ark. 286.

3. The act does not limit the amount of money to be expended in the construction of the road, nor does it provide the kind nor character of the road.

4. The commissioners have the power to determine the amount of assessment absolutely.

5. The description of district is uncertain and indefinite, and the district embraces other districts.

House Rector & House, for appellees.

1. None of appellants' contentions that the act is invalid are tenable nor are they they sustained by any authorities. The recent cases of Sallee v. Dalton, Cumnock v. Alexander, Reitzammer v, District and Booe v. Sims settle all their contentions.

2. As to benefits, see 98 Ark. 113 and the recent decisions in cases supra, mss. op.; 96 Ark. 410; 120 Id. 286; 100 Id. 366; 108 Id. 366; 108 Id. 419; 83 Id. 344; 133 Id. 118.

3. The limitations as to the amount to be expended are fixed by law that it shall not exceed the benefits. Cases supra; 134 Ark. 30; 110 Id. 99; 113 Id. 193; 106 Id. 39; 120 Id. 377.

4. The Legislature has full authority to empower the commissioners to assess for benefits. 98 Ark. 549. If the assessments were excessive, the remedy was by appeal. 127 Ark. 318.

5. The same land can be included in two districts, but the act of 1911 creating District No. 1 is invalid under 118 Ark. 294. See also 109 Ark. 90-97; 113 Id. 363; 119 Id. 188; 103 Id. 452-463. Van Dyke v. Mack, 139 Ark. 524, is squarely in point. See also 123 S.W. 827; 100 Ind. 380.

A subsequent act repeals a former one to the extent of its repugnancy. 72 Ark. 8; 65 Id. 508; 92 Id. 79; 76 Id. 34; 82 Id. 305. The act creating the Delta district is a valid expression of the lawmaking power. Cases supra.

OPINION

HART, J., (after stating the facts).

The district in question was created by an act of the Legislature passed at its regular session in 1919 and approved March 8, 1919. Special Road Acts of the Session of 1919, vol. 1, p. 706.

It is first earnestly insisted that the act is unconstitutional because it gives the commissioners power to lay out and establish new public roads and takes away from the county court the jurisdiction over public roads vested in it by article 7, section 28, of the Constitution of 1874.

The section complained of is section 2, and it reads as follows:

"Said district is hereby organized for the purpose of improving that part of the public roads in Lee County, Arkansas (here follows detailed description of the roads). The improvements to be made by said district are to be made on the road as now laid out, or which may be laid out by the county court of Lee County, or substantially on this line, the nature of the improvements and any change in the line of said road to be approved by the county court of Lee County, Arkansas. The county court of Lee County shall lay out public roads along the lines selected by the board of commissioners in the manner provided by Act 422 of the Acts of 1911 of the State of Arkansas, being "An Act to amend section 7328 of Kirby's Digest of the Statutes of Arkansas. Said highway is to be constructed of macadam or such other material as the commissioners may deem best, and they are authorized to build such bridges and culverts as they may find desirable. Any bridges built shall be built as approved by said county court. In building said highway, the commissioners may proceed by letting the work as a whole or in sections, or they may build the same, or any part thereof, with day labor and the use of such county and State convicts as may be conceded them by the State, or Lee County. In case bids are advertised for, the commissioners shall have the right to accept or reject any bid."

The proposed road which is to be constructed and improved is to be something over twelve miles in length and provision is made for the laying out of a new road to the extent of four miles on each end thereof.

It is earnestly insisted by counsel for appellants that the act provides that the commissioners shall lay out the new road and make it mandatory upon the county court to establish the roads as laid out by the commissioners and thus destroys the freedom of judgment of the county court in the matter.

In Sallee v. Dalton, 138 Ark. 549, 213 S.W. 762, this court held that a special act of the regular session of the Legislature of 1919, creating a road improvement district in Randolph County, Arkansas, which provided for the construction of new roads to be established as well as the improvement of old roads already established, did not violate article 7, section 28, of the Constitution of 1874, giving the county courts exclusive jurisdiction over roads.

Section 3 of that act provides that if any part of the proposed road has not been laid out as a public road, it is hereby made the duty of the county court of Randolph County to lay the same out in accordance with Act 422 of the acts of the General Assembly of the State of Arkansas for the year 1911.

It is contended by counsel for appellants that if this section had stood alone in that act, the court would have held it to be mandatory. We can not agree with counsel in this contention. The court held that this section of the statute was merely a method of procedure for the guidance of the county court in laying out the new roads, and was not mandatory so as to deprive the county court of its freedom of judgment in laying out new roads. This is shown both by the majority opinion and the dissenting opinion in that case.

Section 5 of the act provides that if the commissioners deem it to the best interest of the district to vary the line of road, they may report that fact to the county court, and in that event, if the county court approves the report, it may make an order changing the route of the road, and, if necessary, it shall, in that event, lay out the new road in the manner hereinbefore provided. That is to say, that it should lay out the new road in the manner provided in section 3. The majority of the court held in that case that section 5 and section 3, when construed together, did not deprive the county court of the judgment and discretion in the establishment of new roads vested in it by the Constitution, and Judge WOOD and the writer maintained the contrary view in a dissenting opinion. The court deliberately construed the statute, and no useful purpose could be served by going into the matter again. A careful reading of section 2 of the act in the case at bar will show that it is in no essential respect different from sections 3 and 5, construed in the case just referred to.

Here the section provides that the county court of Lee County shall lay out public roads along the lines to be selected by the board of commissioners in the manner provided by act 422 of the Acts of 1911. It also provides that any change of line of the road is to be approved by the county court of Lee County. It provides that the bridges shall be built as approved by the county court. Therefore, we are of the opinion that the present statute in the respect complained of is substantially like that construed in Sallee v. Dalton, supra, and that the decision in this case on this point is ruled by the decision in that case. Other recent cases sustaining Sallee v. Dalton, supra, are Cumnock v. Alexander, 139 Ark. 153, 213 S.W. 767; Reitzammer v. Desha Road Imp. Dist. No. 2, 139 Ark. 168, 213 S.W. 773; and Hamby v. Pittman, 139 Ark. 341, 213 S.W. 755.

The agreed statement of facts shows the following:

"That the construction of the proposed road is impracticable and not feasible; that large portions thereof run through low and swampy lands and that roads thereon can not be constructed without building such levees, embankments, bridges and culverts to such a cost as would be far in excess of any possible benefit that might accrue to adjoining lands.

"That the whole of the roads to be constructed under said act lies within the eastern part of the boundaries of the district; that practically all of the lands within the western half of the district are inaccessible to the proposed roads on account of natural obstacles lying between such lands and the proposed route of the roads, and that by reason thereof such lands can not be benefited in any manner by the construction of the roads. It is claimed, therefore, that the assessment against lands in the eastern half of the district will be burdensome and amount to confiscation."

It is earnestly insisted by counsel for appellants...