Cumnock v. Alexander

• Citation: 213 S.W. 767,139 Ark. 153
• Decision Date: 09 June 1919
• Docket Number: 22
• Parties: CUMNOCK v. ALEXANDER
• Court: Arkansas Supreme Court

213 S.W. 767

139 Ark. 153

CUMNOCK v. ALEXANDER

No. 22

Supreme Court of Arkansas

June 9, 1919

Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor affirmed.

STATEMENT OF FACTS.

This suit questions the constitutionality of Act No. 436, passed at the 1919 session of the General Assembly. The act is entitled, "An Act Creating the Pulaski County Road Improvement District No. 10." Section 4 of this act divides the territory embraced in the entire district into six sub-districts designated as sections. The act describes the territory embraced in each sub-district and imposes upon each particular section the duty of improving certain roads located therein. Two of these sections are north and east of the Arkansas river and each includes the city of North Little Rock; while four of the sections lie south and west of the river. The city of Little Rock, which is on the south and west side of the Arkansas River, is included in all six of the sections, and it is asserted that this constitutes an arbitrary discrimination against the city of Little Rock.

A second objection is that the act is an invasion of the jurisdiction of the county court over the roads of the county, and a third objection is that certain costs and expenses are made a common charge against all the districts whereas no authority exists under the law for imposing a tax against any particular tract of land except upon the theory that that land is to derive a benefit equal to or greater than the tax to be levied from the improvement proposed. A fourth objection is that the roads to be improved are not definitely determined by the act and that the commissioners may and probably will establish new roads. A fifth objection is that the act undertakes to improve certain streets in the city of Little Rock in connection with the roads leading into the outlying territory. A sixth objection is that sub-district No. 4 provides for the improvement of a road running near the Lonoke County line which will be beneficial to the lands of that county, but that no provision is made for requiring the lands thus benefited to bear their proportionate part of the cost of the improvement.

Amici Curiae assert the act is void as having conferred corporate entity and authority on the district in violation of section 2 of article 12 of the Constitution; and that the act is void in that provision is made for the appointment of a receiver to collect the taxes of any particular section if default shall be made in the payment of any bond or the interest thereon. And they further say that the act must fall because it contains certain exemptions from liability in favor of the commissioners against their negligence. And, finally, they assert that the act is void in that it contains a legislative finding that certain lands will be benefited by the proposed roads, whereas this is a judicial, and not a legislative question.

These objections will be discussed in the order stated.

Decree affirmed.

Frauenthal & Johnson, for appellant.

The act is unconstitutional and void because

1. It provides for one set of commissioners for six separate improvements.

2. It includes about two-thirds of Pulaski County in a road improvement district and divests the county court of its constitutional jurisdiction.

3. It calls for improving part of the streets of Little Rock together with roads leading into both the city of Little Rock and North Little Rock so as to combine a road leading into the country, surrounding these cities without giving the property owner's of the city a voice in the improvement.

4. The roads leading into North Little Rock have included within the taxable area the city of North Little Rock as well as the city of Little Rock, while those leading into Little Rock include only the city of Little Rock and omit North Little Rock from its taxable area, thus making an arbitrary discrimination and distinction between the cities.

5. Section I of the act gives commissioners the right to build a loop without designating the route of the road which renders it void for uncertainty.

6. Section 2 includes Pulaski property for the purpose of paying for the improvement and does not include Lonoke County property when the road runs very near the Lonoke County line.

7. Section 2 begins at the southeast corner of section 31, township 2 north, range 11 west, which is outside the city limits of North Little Rock. See 116 Ark. 178; 118 Id. 119.

Grover T. Owens and J. W. House, Jr., for appellees.

The act is not unconstitutional for any of the reasons stated by appellant. See 96 Ark. 418-419; 96 Id. 410-417, 120; Id. 282; 125 Id. 325; 133 Id. 380-390; 126 Id. 318-322; 125 Id. 325; 125 Id. 325-330; 130 Id. 507-517.

Allyn Smith, amicus curiae.

The act is unconstitutional for the reasons stated by attorneys for appellant and many others. 59 Ark. 513; art. 12, § 2, Constitution. See also 11 Kan. 23; 74 Wis. 620; 8 Kan. 321; 134 U.S. 557; 6 Howard, 550; 12 Id. 537; 24 Id. 553; Ib. 663; 7 Mass. 161; 179 S.W. 486; 2 Minn. 330; 6 Peters (U.S.), 709.

F. A. Henry and J. H. Carmichael, amici curiae.

The act is unconstitutional for the reasons stated, supra, and others. It infringes upon the jurisdiction of the county courts, is arbitrary and discriminatory. 89 Ark. 513. The description of the road is vague, indefinite and uncertain. 66 Ark. 292.

SMITH J. HART, J., dissenting.

OPINION

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

It is always a question of fact, and, in a large measure, a matter of opinion, as to what lands will be benefited by a particular improvement. Reasonable minds may, and do, differ on this question, and that difference continues to exist when the question of the amount of benefits is reached. Some one must be authorized to decide these questions, for it is inconceivable that there should ever be, or could ever be, unanimity of opinion upon a subject affording so wide a scope for difference of opinion. The Legislature has control of this subject, and it may appoint such agencies to make these findings as it sees proper to create, or it may make the findings on its own account, and when these findings have been made and have been properly declared in the recitals contained in legislative enactments the courts are bound thereby except for arbitrary or obvious and demonstrable mistakes. A number of cases have thus announced the law and what we have just said disposes of the last recited objection of the amici curiae, that the question of benefits is a judicial, and not a legislative question. Indeed, it is conceded that this court has frequently so decided, and we decline to overturn this line of cases.

Applying this test, we are unable to say that an obvious and arbitrary discrimination against Little Rock has been made. We can not say, in the face of the affirmative finding by the Legislature, that Little Rock will derive benefits from the construction of roads which are on the opposite side of the river, that no such benefits will be derived, for the city of Little Rock has direct connection with these roads over the free bridge across the river. It may be true that Little Rock will not derive as much benefit from the roads on the opposite side of the river as from those on its own side; but that is a question of fact about which we are not called upon to express an opinion. This question of benefits is one to be considered by the assessors, when the betterments are assessed, and does not arise on this appeal.

The contention that the act is an invasion of the jurisdiction of the county court is one which received deliberate consideration by the court in the recent case of Sallee v. Dalton, 138 Ark. 549, 213 S.W. 762, where a somewhat similar statute was under construction; and while the judges have differed, and do differ, upon this question, the majority are of the opinion that the act is not open to that objection.

Sections 6 and 7 of the act make the plans for the improvement subject to the order and judgment of the county court, and if that court should disapprove the plans of any or all of these sections that district or those districts whose plans were disapproved could not be constructed. These sections are in fact separate districts, and it is made the duty of the county court to pass upon the plans of each of them. By section 5 it is provided that "if, for any reason, the improvement of one or more of the sections of said road as hereinbefore defined and numbered can not be carried out, it shall be the duty of the commissioners to improve the remaining sections in the manner herein set forth."

Indeed, the third objection to the act contained in the statement of facts is that separate districts are required to prorate certain expenses. The portion of the act upon which this objection is based reads as follows:

"The general expenses of the district inuring to the benefit of all sections shall be borne by the several sections in the proportion that the cost of the construction work in each section shall bear to the total cost of the construction work in all sections, and contributions from county, State and Federal aid shall be divided among the several sections according to its proportion insofar as this may not be altered by the law under which the contributions are made."

We think, however, that no legislative purpose is manifested to have one section bear any portion of the cost of any other section, for the expenses to be borne and prorated by all the sections are only "the general expenses of the district inuring to the benefit of all sections." These sections constitute separate improvements, yet they are so closely related that certain expenses will be common to them all and to effect a saving to each section it is provided that this...