Faver v. Wayne

• Decision Date: 22 April 1918
• Docket Number: 308
• Citation: 203 S.W. 22,134 Ark. 30
• Parties: FAVER v. WAYNE
• Court: Arkansas Supreme Court

203 S.W. 22

134 Ark. 30

FAVER v. WAYNE

No. 308

Supreme Court of Arkansas

April 22, 1918

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

Decree affirmed.

J. A Comer and Cohn, Clayton & Cohn, for appellant.

1. The district was void. Act 338, Acts 1915; 123 Ark. 205; 86 Id. 1; 55 Id. 148; 48 Id. 308; 75 Id. 120-6, etc.

2. The act being void it could not be cured by the act of 1917. 123 Ark. 205; 118 Id. 119-123; 126 Id. 416; 122 Id. 491; 119 Id. 188.

3. It does not revive or revitalize the void acts of the district. 69 Ark. 68-76; 18 Id. 119; 123 Id. 205.

Grover T. Owens and Rose, Hemingway, Cantrell, Loughborough & Miles for appellees.

1. The curative act is valid and cures all defects. 43 Ark. 421; 44 Id. 365; 45 Id. 41; 47 Id. 414; 50 Id. 298; 58 Id. 117; 62 Id. 79; 85 Id. 525; 90 Id. 339; 83 Id. 348; 84 Id. 393; 98 Id. 113. See also 107 Id. 291; 112 Id. 360; 116 Id. 177; 102 Id. 411; 103 Id. 299. The act is valid and constitutional.

2. The cost of the work is not limited to 30 per cent. of the assessed value. 79 Ark. 229. There is no limitation in the act. The plans were approved and all the acts of the commissioners ratified.

OPINION

WOOD, J.

Road Improvement District No. 7 was organized under what is known as the Alexander Road Law (Act 338 of the Acts of 1915) before that law was construed by this court in Lamberson v. Collins, 123 Ark. 205, 185 S.W. 268. The district was invalid because of a failure to comply with the provisions of the first section of the Alexander act as construed in Lamberson v. Collins, supra. In 1917 the Legislature passed the following act: Act 115:

"An act to cure all irregularities in the organization of Road Improvement District No. 7 of Pulaski County, and to establish the same as a road improvement district under the terms of Act 338 of the session of 1915."

"Section 1. All irregularities and errors in the organization of Road Improvement District No. 7 of Pulaski County are hereby cured, and said district is hereby established as a road improvement district under the terms of the act of the General Assembly of the State of Arkansas of the year 1915, entitled, 'An act providing for the creation and establishment of road improvement districts for the purpose of building, constructing and maintaining the highways of the State of Arkansas,' approved March 30, 1915, being Act No. 338 of the session of that year, with all the powers granted and all the liabilities imposed by the terms of said act.

"Section 2. The appointment of J. R. Wayne, T. L. Hughes and W. M. Morris, as commissioners of said district, is hereby ratified, and they are hereby re-appointed, and it is made their duty to construct, maintain and repair the roads contemplated in their revised plans as filed in the office of the county clerk of Pulaski County, which plans are hereby expressly approved; and all acts of the said commissioners heretofore performed by them, and all contracts made by them are hereby ratified and confirmed, and the said commissioners are directed to carry out said contracts.

"Section 3. The assessment of benefits heretofore made by the assessors of said district is hereby declared to be just, equal and proportionate, and the same is in all things confirmed and declared to be the assessment of benefits for said district, until a reassessment shall be ordered according to law. The appointment of J. R. Alexander, Thomas Landrith and H. A. Wayne, as assessors of said district, is hereby ratified and confirmed.

"Section 4. Said district shall consist of the following territory in Pulaski County, as laid off by the county court of said county, to-wit: (Here follows the land embraced in the district described).

"Section 5. This act being for the immediate preservation of the public peace, health and safety, an emergency is hereby declared, and this act shall take effect and be in force from and after its passage. Approved February 22, 1917."

The purpose of the above act is expressed in its title and is clearly shown in the first section. It was to cure all irregularities in the organization of Road Improvement District No. 7 and to establish the same just as though the Alexander law, as construed in Lamberson v. Collins, supra, had been complied with.

The act creates and establishes a complete improvement district under the Alexander law "with all the powers granted and all the liabilities imposed by the terms of said act." But the second section of the act after re-appointing the commissioners that had been named "made it their duty to construct, maintain and repair the roads contemplated in their revised plans as filed in the office of the county clerk of Pulaski County," which plans were expressly approved and all the acts of the commissioners that had been previously performed and all the contracts that had been made by them were ratified and confirmed and the commissioners were directed to carry out said contracts.

By section three the assessment of benefits that had been made by the assessors was approved and declared to be the assessment of benefits for the district until a reassessment should be ordered according to law.

By section four the land composing the district was described. So the act eliminated the defects which rendered the district invalid under the Alexander law, and ordered the commissioners to complete the improvement as contemplated under the revised plans.

As we construe the second section of the act the command to the commissioners therein contained, to carry out the contracts made for the construction of the improvement according to the revised plans then on file, is imperative. By thus expressly approving the revised plans, on file in the office of the county clerk, and requiring that the improvement be completed according to these plans, it must be conclusively presumed that the Legislature investigated these plans and ascertained the cost of the improvement under the contracts for the carrying out of the improvement according to the plans. The Legislature, therefore, knew that the cost of the improvement would exceed thirty per cent. of the assessed value of the property in the district and must be held to have intended to validate the acts of the commissioners in entering into contracts for the completion of improvements and repairs which contemplated a cost in excess of the limitation as contained in section 28 of the Alexander law.

The filing of revised plans and entering into contracts to construct an improvement according to these revised plans which would cost more than thirty per cent. of the...