Dickinson v. Reeder

• Decision Date: 05 April 1920
• Docket Number: 307
• Citation: 220 S.W. 32,143 Ark. 228
• Parties: DICKINSON v. REEDER
• Court: Arkansas Supreme Court

220 S.W. 32

143 Ark. 228

DICKINSON v. REEDER

No. 307

Supreme Court of Arkansas

April 5, 1920

Appeal from Howard Chancery Court, James D. Shaver, Chancellor affirmed.

Affirmed.

Phil McNemer, for appellant.

The act creating the district is unconstitutional and void, as it attempts to confer power on the commissioners to maintain and repair public roads. Const., art. 7, § 28; 89 Ark. 516. It takes jurisdiction from the county court which has exclusive control over public roads.

Coleman Robinson & House and Rose, Hemingway, Cantrell & Loughborough, for appellee.

1. The act is not void because it provides for the maintaining of the road after completion. 213 S.W. 762; 213 Id 882, 255; Ib. 633; 102 Ark. 306; 95 Id. 496; 71 Ark. 27; 78 Id. 584; 52 Id. 332.

2. If only a part of the act is unconstitutional that only should be set aside and the balance of the act upheld. 52 Ark. 490; 81 Id. 519; 120 Id. 406; 212 U.S. 322; 129 Ark. 548.

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

OPINION

MCCULLOCH, C. J.

This case involves an attack on the validity of a statute creating a local improvement district in Howard County for the purpose of improving a certain road and for maintaining and keeping it in repair after so improved. Act No. 562, Regular Session of 1919.

The attack is narrowed to that feature of the statute which authorizes the continuation of the district for the purpose of repairing and maintaining the road to be improved, the contention being that that feature is void and renders the whole statute void. Thus the single question presented in the case is whether or not in the creation of a local improvement district for the purpose of improving a public road authority may be conferred in the same statute upon the same agency to remain in existence for the purpose of repairing and maintaining the road which is to be improved. That precise question has not been heretofore determined by this court, though there has appeared in previous decisions certain language which seems to indicate what was in the minds of the judges with respect to this question. For instance, in the case of Road Improvement District No. 1 v. Glover, 89 Ark. 513, 117 S.W. 544, Judge BATTLE, speaking for the court, said: "We are of the opinion, however, that the Legislature can by a valid act authorize the organization of a part of a county into a road district for the purpose of repairing, maintaining, and improving public roads in such district already in existence, upon the petition of the majority in value of the landowners in the territory to be affected, the cost and expense of such improvement to be paid with money derived from local assessments; and that this can be done upon the theory before suggested."

The above language was perhaps not essential to a determination of the question presented in that case, and we do not feel bound by it if we conclude now that it does not correctly declare the law.

The recent case of Prewitt v. Ladd, 140 Ark. 381, 215 S.W. 633, involved the question of validity of a general statute authorizing the creation of local improvement districts for the purpose of repairing and maintaining public roads which had theretofore been improved through the agency of other improvement districts. In disposing of the question presented, after citing another decision of this court, it was said: "In accordance with the principles laid down in these cases, a public road may be maintained and the expense thereof paid for by local assessments, and so an assessment may be levied for the repair and maintenance of public roads. Assessments for local improvements are justified upon the theory that the lands upon which they are laid are especially benefited by such improvements, and for that reason ought to bear the burden, rather than property generally. The theory is that the property subject to the special assessments will be enhanced in value by such improvements to the extent of the benefit imposed. * * * In the case at bar another improvement district was organized for the purpose of maintaining a public road which had already been constructed under a separate improvement district. The lawmakers, recognizing that it would not cost as much to maintain the road as it did to construct it in the first instance, and that the benefits to be derived from the maintenance of the road would be in proportion to the benefits which accrued to the lands in building the road, enacted the section under consideration. The plain meaning of the section, when read from its four corners, is that each tract will be benefited by the maintenance proportionately to the benefits derived from the construction of the road in the first instance. This was a valid exercise of legislative power."

There is no distinction, we think, between the power of the Legislature to confer authority in the same statute upon a local improvement district both to improve and to maintain a road and the power to create a separate improvement district for the purpose of maintaining a road which had once been improved through another agency. If the power exists in the latter instance, it exists in the former. In neither instance is there an encroachment upon the jurisdiction of the county court over public roads. Such legislation does not take away the control of the county courts over highways. The principle announced in the recent case of Easley v. Patterson, 142 Ark. 52, 218 S.W. 381, we think controls the determination of the question now before us. We were dealing with the question of the validity of a statute which failed to provide for the submission of the plans for improvement of a road to the county court, and we said: "Our conclusion is that the authority to improve a public highway does not invade the jurisdiction of the county court. The road is a public highway, but the improvement is for the betterment of the contiguous lands. The improvement of the road does not in any sense constitute an interference with the general control of the county court over public highways. The authority of the board of commissioners is to bring about a betterment of the highway and not a detriment. The authority of each body, that is to say the board of commissioners and the county court, may be exercised without hindrance to the other. * * * Whenever the powers conflict, that of the board of commissioners must yield to the jurisdiction of the county court, but, as before stated, there arises no necessary conflict from the authority of the commissioners to improve the road."

This principle applies with equal force to the question of conferring continuing authority on a local improvement district board to maintain a public road, for the maintenance is, after all, a local improvement and is done for the betterment of the contiguous lands, and it does not interfere with the general authority of the county court over public roads. The two powers go hand in hand, that of the county court being superior in the event of possible conflict. It is a mere choice in the form of the legislation as to whether the authority to maintain the road shall be embraced in the same statute and conferred upon the same agency as that which concerns the original improvement, and in neither case is the jurisdiction of the county court invaded.

The question now presented was argued in the case of Easley v. Patterson, supra, but we pretermitted a decision on it for the reason that the majority of the court concluded that the particular statute involved in that case did not confer continuing authority to repair and maintain the roads to be constructed.

There is no escape from the conclusion in the present case that the statute undertakes to confer that authority. Section 1 of the statute contains a provision that the "commissioners of said district shall be maintained in succession in the same way as a board of improvement for the preservation and maintenance of the highway herein contemplated." Section 5 provides that the commissioners "shall also maintain said roads in good condition after their completion."

Section 20 reads as follows: "The district shall not cease to exist upon the completion of the roads, but shall continue to exist for the purpose of preserving them and keeping them in repair. To this end, the county court may from time to time make such additional levies, based upon the assessment of benefits, as may be necessary for that purpose."

Section 9 contains a provision for reassessments of benefits from year to year. Section 5 also contains a provision for formation of plans for the improvement and for the approval of the same by the county court.

These provisions of the statute plainly confer continuing authority to maintain the road to be improved--not to make new improvements or to change the nature of the improvement, but to maintain the improvement according to the plans under which it is constructed.

The conclusion of the majority is that the statute is a valid one and that the chancellor was correct in sustaining a demurrer to the complaint.

Affirmed.

DISSENT BY: HART

HART J. (dissenting).

As said by Judge Sharswood, who was not only one of the greatest American judges, but also an eminent law writer, having edited many English law books, including Blackstone's Commentaries: "We must say at some time to this tide of special taxation, thus far shalt thou go and no further. To our own decisions, as far as they have gone, we mean to adhere, but we are now asked to take a step much in advance of them. This we would not be justified by the principles of the Constitution in doing." Hammett v. Philadelphia, 65 Pa. 146.

In the majority opinion there is a quotation from Road Improvement District No. 1 v. Glover 89 Ark. 513, 117 S.W. 544, which is admitted to be ...