Gregg v. Road Improvement District No. 2

• Decision Date: 12 October 1925
• Docket Number: 159
• Parties: GREGG v. ROAD IMPROVEMENT DISTRICT No. 2
• Court: Arkansas Supreme Court

277 S.W. 515

169 Ark. 671

GREGG v. ROAD IMPROVEMENT DISTRICT No. 2

No. 159

Supreme Court of Arkansas

October 12, 1925

Appeal from Jackson Circuit Court; Dene H. Coleman, Judge; affirmed.

Judgment affirmed. Judgment affirmed.

Boyce Stayton & Mack, for appellant.

Gustave Jones and C. M. Erwin, for appellee.

MCCULLOCH C. J. HART, J., dissents.

OPINION

MCCULLOCH, C. J.

This is a proceeding instituted in the county court of Jackson County to annex property to a road improvement district pursuant to statute. Crawford & Moses' Digest, §§ 5399, 5426. Appellants are owners of some of the real property sought to be annexed, and they protested against the annexation and against the assessment of benefits and took an appeal to the circuit court, where the cause was heard and final judgment rendered approving the assessment of benefits and authorizing the annexation of the property in accordance with the prayer of the commissioners of the district. There was formerly another proceeding to annex the same property, with the exception of one tract, and on appeal to this court it was decided that the judgment annexing the property was erroneous on account of the omission of a certain benefited tract of land. Sanders v. Wilmans, 160 Ark. 133, 254 S.W. 442. Reference is made to the opinion in the former case for a detail of the issues involved. After the remand of the cause, the commissioners of the district instituted a new proceeding correcting the error in the former proceeding by including the omitted tract which was found to be necessarily benefited, and appellants in their remonstrance have raised all of the questions that were decided against the remonstrants on the former appeal, and they have also raised other objections to the validity of the proceedings.

Appellees contend that the judgment of this court on the former appeal constituted an adjudication of all the issues involved, and that that judgment is a bar to a readjudication of those issues. We are of the opinion that the doctrine of res judicata does not apply, for the reason that this is an independent proceeding between parties other than those who were parties to the former appeal, and that they are not bound by the former judgment as an adjudication of their rights. Counsel for appellees rely on the recent case of Howard-Sevier Rd. Imp. Dist. v. Hunt, 166 Ark. 62, 265 S.W. 517, as decisive of this question in favor of appellees, but we do not regard that case as reaching to the question of res judicata in the present case. The judgment of this court on the former appeal was a reversal and setting aside of the judgment rendered below for the annexation of the territory involved, and the result was to nullify the annexation proceedings. The present proceedings were instituted independently, and the judgment in the former proceedings did not constitute an adjudication of the rights involved in the present case. The decision on the former appeal did not become the law of the case, so as to prevent a further adjudication, for the same reason that the present case is a different one from the former. The principles of law announced in the former opinion come, however, within the doctrine of stare decisis. It is within the power of the court to overrule that decision, but after consideration the majority of this court adhere to that decision and decline to overrule it. It is unnecessary to restate all of the points there decided, for the opinion shows for itself.

It becomes necessary, however, to discuss the additional grounds of attack upon the validity of the proceedings and the correctness of the judgment of the circuit court.

All of the additional grounds, except the question of the correctness of the assessment, relate to the validity of the original proceedings establishing the district. In the former opinion we said: "In the proceedings adding additional territory found to be benefited by the improvement, the question of the validity of the original organization only arises collaterally, and the validity of the district cannot be challenged on account of mere errors and irregularities in the original organization. If, however, the organization is void on account of jurisdictional defects--in other words, if the lack of jurisdiction appears on the face of the proceedings--the question could be raised collaterally." That statement of the law is adhered to now, and the inquiry here is whether or not there were defects in the original organization on the face of the proceedings which render the same void.

The statute (Crawford & Moses' Digest, § 5427) provides that notice of the hearing of a petition to organize a district shall be published for two consecutive insertions in a newspaper having a general weekly circulation in the county. We have held that the publication of notice is jurisdictional, and that it must accurately describe the lands to be included in the formation of the district. Norton v. Bacon, 113 Ark. 566, 168 S.W. 1088; McRaven v. Clancy, 115 Ark. 163, 171 S.W. 88; Paschal v. Swepston, 120 Ark. 230, 179 S.W. 339. It appears from the record filed in the original proceeding organizing the district that there were two publications in newspapers having general circulation in the county, one of which publications correctly described the lands, but in the other notice there was an erroneous omission of certain tracts. It is contended by counsel for appellants that, though the statute only requires publication in one newspaper, if there is in fact publication in more than one, and an error occurs in either of the publications, it is fatal to the organization. We do not agree with counsel in this contention, for, if either publication is correct and is made in accordance with the terms of the statute, it constitutes, technically, a compliance with the statute, and the occurrence of an error in an additional publication does not render the proceedings void. The correct publication constitutes constructive notice, and its conclusive effect is not lessened by the fact that an error is made in an additional notice. The fact that there was an omission of lands from the additional notice would at most constitute an error in the proceedings which would not affect the validity thereof on collateral attack.

It is next contended that the original proceedings were void because of a material variance with respect to the description of the route of the road to be improved between the preliminary surveys, plans and specifications filed with the county court and the description in the petition and plats accompanying the same which were designed by the property owners. The remonstrance of appellants sets forth the facts which constitute the variance. There was a demurrer sustained to that paragraph of the remonstrance.

The general statute authorizing the organization of road districts (Crawford & Moses' Digest, § 5399 et seq.) provides that a majority of the owners of land in value, acreage or numbers within a proposed improvement district may petition the county court to establish a district to embrace a certain region which it is intended shall be embraced within the boundaries of the district and file a plat with the petition, "upon which the boundaries of the proposed district shall be plainly indicated, showing the roads which it is intended to construct and improve as nearly as practicable." Notice shall be given, etc., of the hearing on the petition, and, upon application of ten property owners, or of the county judge, the State Highway Commissioner shall prepare preliminary plans and specifications and also prepare petitions to be presented to property owners. We construed this provision of the statute in Lamberson v. Collins, 123 Ark. 205, 185 S.W. 268, and decided that compliance with all of the provisions referred to was jurisdictional. It will be observed, however, from a consideration of the two sections of the statute containing those provisions (Crawford & Moses' Digest, §§ 5399, 5400) that the first section requires the preliminary surveys to state accurately the boundaries of the district, but only requires a description of the road "as nearly as practicable." In § 5400, supra, the State Highway Commissioner is required to furnish plans and specifications and prepare the petitions. Now, the allegation in the remonstrance is that there is a variance between the route of the road described in the original preliminary plans and specifications presented by property owners and the route described in the plans which accompanied the petition, that is to say, those prepared by the State Highway Commissioner. According to the allegations of the remonstrants, the order of the court establishing the...