Easley v. Patterson

• Court: Arkansas Supreme Court
• Writing for the Court: MCCULLOCH, C. J.
• Citation: Easley v. Patterson, 218 S.W. 381, 142 Ark. 52 (Ark. 1920)
• Decision Date: 02 February 1920
• Docket Number: 151
• Parties: EASLEY v. PATTERSON

218 S.W. 381

142 Ark. 52

EASLEY v. PATTERSON

No. 151

Supreme Court of Arkansas

February 2, 1920

Appeal from Benton Chancery Court; Ben F. McMahan, Chancellor affirmed.

Decree affirmed.

E. P Watson, for appellants.

1. The power to create special road districts for improvement is given only for the purpose of improving public county roads already laid out or recognized by the county court. The improvement necessarily becomes a part of the original road. 92 Ark. 93; 89 Id. 513; 118 Id. 294; 133 Id. 64; 118 Id. 119; Page & Jones, Tax by Assessment, § 859. The roads also must be definitely designated and described. Section 2 of the act is void, being too vague and uncertain. 118 Ark. 119; Page & Jones on Tax by Assessment, § 859. A "roving commission" can not be given to determine what roads are to be improved. 118 Ark. 294; Ib. 119; 32 Id. 131.

2. The Legislature can not create a public corporation in violation of article 12, section 2 of our Constitution. 78 Ark. 580.

3. The commissioners named in section 1 of the act are public officers. 69 Ark. 460; 84 Id. 540; 24 Mich. 59; Ib 62-3; 17 Am. Ann. Cas. 449.

4. The Legislature can not appoint a public officer for the full term of his office. 24 Mich. 68; 13 Id. 136.

5. Being public officers, they must be elected by a viva voce vote of both houses. Art. 5, § 14, and art. 3, sec. 12 Constitution.

6. The act is void because it creates a perpetuity of office by giving the commissioners power to elect their successors in violation of section 19, Bill of Rights to our Constitution.

7. The act does not state that the roads are situate in the district, and section 2 of the act declares that the district is organized to improve roads in Benton County, thus interfering with the jurisdiction and power of the county court. 25 A. & E. 1179; 153 Ill. 348; 65 Pa.St. 182; 38 N.J.L. 410.

8. The act is in many other ways and for many other reasons void. It gives the commissioners legislative powers. The act is impracticable and uncertain; it does not provide for an appeal; it gives the exclusive right to a board of assessors to make assessments for benefits and to hear objections; it takes away from minors and insane the right to protection or hearing by guardian or attorney ad litem; it fixes a permanent lien for taxes without notice; the benefits are not equal and uniform and all costs are assessed property in the district, including lands of the State; the act is arbitrary and unjust. 32 Ark. 131; Milwee v. Tribble, 139 Ark. 574; 25 A. & E. Enc. (2 Ed.), 1224 and note; 134 Ark. 411; 132 Id. 141; 21 Id. 378; 102 Id. 553; 120 Id. 277.

Duty & Duty, J. W. Nance, Tom Williams, Jeff Rice, McGill & McGill and Lee Seamster, for appellees.

None of the attacks on the act are tenable; many of them have been settled by this court. 99 Ark. 100; 76 Id. 197; 102 Id. 277; 112 Id. 277; 114 Id. 156; 119 Id. 314; 120 Id. 278; 102 Id. 553; 213 S.W. 762; 121 Ark. 325; 130 Id. 507, 503; 215 S.W. 255; 92 Ark. 93; 98 Id. 113; 78 Id. 580; 55 Id. 148; 103 Id. 452; 59 Id. 513; 109 Id. 90; 215 S.W. 255; 214 Id. 50; 119 Ark. 188; 107 Id. 285; 112 Id. 557; 92 Id. 93; 109 Id. 556, and others.

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

OPINION

MCCULLOCH, C. J.

The General Assembly of 1919 (regular session) passed three special statutes creating three separate improvement districts in Benton County for the purpose of improving certain specified roads. The districts were designated in the statute, respectively, as "Road Improvement District No. 2 of Benton County," "Road Improvement District No. 3 of Benton County," and "Road Improvement District No. 4 of Benton County." See Act No. 149, approved March 1, 1919, creating District No. 2, and Act No. 238, approved March 11, 1919, creating District No. 3, and Act No. 415, approved March 27, 1919, creating District No. 4. A later statute was passed during the same session (Act No. 240) amending the statute creating District No. 2, by authorizing an extension of the road to be improved and the addition of other territory.

Owners of real property in each of the districts instituted separate actions attacking the validity of each of the statutes, and they have appealed from an adverse decree of the chancery court upholding the statutes. The three cases involve substantially the same questions, and have been consolidated here for the purpose of being heard.

Learned counsel for appellants present in their argument thirty-five separate and distinct grounds for the attack upon these statutes, the greater portion of which grounds have been settled adversely to their contention by former decisions of this court. The questions are so plainly settled by those decisions that it is unnecessary to refer to them for the purpose of application. We will, therefore, confine the discussion to the questions involved which are fairly open to debate under our own decisions.

The statutes follow, in a great measure, the usual form adopted by the lawmakers in the enactment of special statutes creating road improvement districts by describing the boundaries of the district and the roads to be improved, and by conferring authority on the commissioners to prepare plans for the improvement, to let contracts therefor, and to assess benefits and levy assessments thereon, and to borrow money and issue bonds.

The road or roads to be improved in District No. 2 are described in Act No. 149 as beginning at a point in a certain section where the road intersects the Eureka Springs-Seligman road "and running in a southwesterly direction through Garfield, Bestwater, Avoca, Rogers, Lowell, and to the south county line" in a certain section; also a road beginning at Rogers connecting with the above described road "and running west through Bentonville, Centerton to Decatur;" and also another road beginning on the Missouri line in a certain section "and running south through Sulphur Springs, Gravette, Decatur, Gentry, Siloam Springs and to the Oklahoma State line. "

The amendatory statute referred to above provides for an extension of this road "from Siloam Springs in a southeasterly direction to the Washington County line, and intersecting said Washington County line," and "thence east with said Washington County line and with the south line of Benton County to the southeast corner" of a certain section. It will be seen from this description and by comparison with a map of Benton County, of which we take notice so far as the location of towns is concerned and the sections of land, there is a provision for a road running practically north and south, near the east boundary of the county from a point near the Missouri line southerly through the city of Rogers to the Washington County line; and also a road substantially paralleling the western boundary of the county from a point on the Missouri line south to the Washington County line, and also a road from the city of Rogers connecting with the eastern road just mentioned, and running northwesterly through the city of Bentonville and certain other municipalities, and connecting with the western road at Decatur.

The statute creating District No. 3 provides for a road beginning on the Missouri line in a certain section near the town of Carvena, Missouri, thence in a southeasterly direction through Bella Vista to Bentonville; thence in a southerly direction through Cave Springs to the Washington County line to a point in a certain section; also a road beginning at the intersection of the road from Rogers to Bentonville in District No. 2, near Droke schoolhouse in a certain section; thence in a westerly direction to Morning Star schoolhouse; thence south and west to Vaughan, thence south and west through Mason Valley, to an intersection with the line between two specified sections of land; and thence along or near the section line and through the town of Highfill, thence in a general westerly direction through Springtown, thence in a general southwesterly direction to an intersection with the road from Siloam Springs to Gentry in District No. 2; also a road beginning at or near Morning Star schoolhouse and running west one-quarter mile, thence north to an intersection with the Bentonville and Center road in District No. 2.

The statute creating District No. 2 authorizes the improvement of a road beginning at Elkhorn tavern and running westerly to the town of Pea Ridge, "thence in a general southerly direction on the most practical route to an intersection with the road from Rogers to Garfield" in District No. 2 at or near the town of Rogers; also a road beginning at the southeast corner of the public square in Bentonville, thence in a northeasterly direction to an intersection with the above described road from Pea Ridge to Rogers, at or near the bridge across Sugar Creek.

In each of the statutes the roads are mentioned as public roads. Learned counsel for appellants argue with great earnestness that the statutes do not declare the roads to be public roads, and this is one of the grounds for attack. We do not think that it was essential to the validity of the statutes that there should be an express declaration therein that the roads have already been established as public roads. On the contrary, we hold that, if they are not public roads, it devolves on those assailing the validity of the statute to make it so appear. But, as a matter of fact, the sections of these statutes describing the roads each start out with an express statement that they are public roads, and we think that the attack on this ground is, from any viewpoint, unfounded.

It is alleged in the complaint (and this must be treated on demurrer as true) that there are several public roads from Rogers to Bentonville, and it is contended that this renders uncertain the...