Harrison v. Abington

• Decision Date: 13 October 1919
• Docket Number: 129
• Parties: HARRISON v. ABINGTON
• Court: Arkansas Supreme Court

215 S.W. 255

140 Ark. 115

HARRISON v. ABINGTON

No. 129

Supreme Court of Arkansas

October 13, 1919

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

Decree affirmed.

Eugene Cypert, for appellants.

The special act is invalid for want of proper notice in accordance with section 24, article 5, Constitution of 1874 and because indefinite with respect to the commencement of the road and uncertainty as to boundaries of the district and the lands included. The act is indivisible, and its conflicting clauses render it void. 34 Ark. 224. It is arbitrary and discriminatory. 130 Ark. 70; 83 Id 54; 113 Id. 566; 120 Id. 230; 122 Id. 491; 105 Id. 380; 74 N.Y. 183; 30 Am Rep. 289; 128 N.Y. 190; 2 Ballard on Real Estate, 352; 1 Black on Judgments, 221-226.

Pace, Campbell & Davis, for appellees.

1. The act is valid. Proper notice was given. 87 Ark. 8.

2. There is no uncertainty as to the lands nor their description, and the Legislature had the power to delegate to the commissioners the powers to determine the boundaries of the district. 125 U.S. 355.

3. The jurisdiction of the county court is not invaded. Sallee v. Dalton, 138 Ark. 549; 213 S.W. 762; Ib. 767.

4. Mere clerical errors in a bill of description do not render the act invalid. 113 N.E. 831; 44 W.Va. 315; 98 Kan. 46; 170 P. 399; 165 Id. 835; 172 S.W. 677; 136 Ark. 524.

5. The act is not void for ambiguity, nor indefiniteness or uncertainty. The intention of the Legislature is clear and the description of the road and boundaries sufficiently definite and certain. Cases supra; 213 S.W. 767.

6. Lands in one district may also be included in another and larger district. 123 Ark. 13; 103 Id. 452; 213 S.W. 773; VanDyke v. Mack, 139 Ark. 524.

7. Due notice was given and published. The Legislature is the sole judge of the mode of notice. Hamilton Law of Special Assessments, § 141; 1 Page & Jones on Taxation, etc., § 121; 74 N.Y. 183.

MCCULLOCH C. J. WOOD and HART, JJ., dissent.

OPINION

MCCULLOCH, C. J.

This case involves an attack on the validity of a special statute enacted by the General Assembly of 1919 at the regular session creating a road improvement district to be known as the "Beebe, Antioch and Lonoke Road Improvement District" in White County, Arkansas. Acts of 1919, page 2437. Appellants are the owners of real property in the district and seek to restrain the proceedings under that statute. The chancery court sustained a demurrer to the complaint and entered a decree dismissing it for want of equity.

Two of the grounds for attack on the validity of the statute are that notice of introduction of the bill for this statute was not given in accordance with section 24, article 5, of the Constitution, and that the statute is violative of the provision of the Constitution (section 24, article 5), that "where a general law can be made applicable, no special law shall be enacted." Those questions have been decided by this court against the contention of appellants so many times that the law on that subject must be treated as settled.

It is next contended that the act is indefinite and void with respect to the point of commencement of the road to be improved. The language of the complaint on this subject reads as follows:

"They further charge that said act is indefinite, uncertain and conflicting, because it provides that said road to be improved by said board of commissioners, shall begin at 'Pope Mill Bridge' over Cypress Creek, on the line between White and Lonoke counties, in section 26, township 5 north, range 8 west, when in fact the only bridge across Cypress Creek in said township and range is in section 28, two miles from place mentioned in said act; that Cypress Creek runs through section 26 in said township and that Pope Mill Bridge in section 28 is a well known bridge on a public road."

That part of the statute which describes the road and prescribes the boundaries of the district reads as follows:

"A road running from Pope Mill Bridge over Cypress Creek on the Lonoke County line in section twenty-six (26), township five (5) north, range eight (8) west, and running northwesterly through the town of Beebe, on streets to be selected by the commissioners and to and through the town of Antioch, on the route which the commissioners may choose, to the north line of Antioch township; and said district shall embrace all quarter sections of land, any part of which is within three and one-half miles of the road as laid out by the commissioners, except that it shall include no lands in Coffey Township."

The objection to the validity of the statute in this respect is clearly stated in the charge that there was a legislative mistake in describing the commencement of the road at the bridge mentioned and reciting it to be located in section 26, whereas the only bridge so named answering to that description is situated in section 28, two miles distant, and that this inaccuracy renders the statute void. There is, according to the language of the complaint, which we must accept as true for the purpose of testing the correctness of the court's ruling on the demurrer, an error in describing "Pope Mill Bridge over Cypress Creek on the line between White and Lonoke counties" as being in section 26, but it does not follow that this legislative mistake renders the description void, for if we can, from the language of the statute taken as a whole, discover the legislative intent, it is our duty to disregard the error, treating it as a mere clerical one. We learn from the language of the complaint that Pope Mill Bridge over Cypress Creek is a very well known bridge on a public road; that it is in section 28, and that it is the only bridge across Cypress Creek in that township. We take judicial cognizance of the fact that Cypress Creek runs through both of those sections, and that it is the boundary line between Lonoke and White Counties. It is clear, therefore, from the language of the statute, and considering it in the light of the facts recited in the complaint, that the Legislature meant for the road to begin at this bridge and that the description of the particular section was a clerical mistake. We should, therefore, disregard that mistake and accept the other language which accurately indicates the legislative will. In this view of the matter we think we are fully sustained by the decisions of this court in the following cases: Heinemann v. Sweatt, 130 Ark. 70, 196 S.W. 931; Dorsey Land & Lumber Co. v. Board of Directors of Garland Levee District, 136 Ark. 524, 203 S.W. 33.

It is insisted in the same connection that the act is void for uncertainty because it fails to designate the particular bounds of the district and leaves it to the commissioners to determine the boundaries by selecting the route of a portion of the road, and that this is an improper delegation of authority to the commissioners. It will be noticed that the statute does, in fact, authorize the commissioners to select the route of a portion of the road, the point of commencement and a general outline of the route being given in the statute, and that the district shall embrace "all quarter sections of land any part of which is within three and one-half miles of the road as laid out by the commissioners." In other words, it provides for the improvement of a road which commences at Pope Mill Bridge and runs to and through the town of Beebe and thence to the town of Antioch, and thence to the north line of Antioch Township. The town or village of Antioch is in Antioch Township, which is north of Beebe, and Coffey Township is the adjoining township on the north of Antioch Township. The boundary line between Antioch Township and Coffey Township is made the northern terminus of the road, and the commissioners are given the authority to select the route from the town of Antioch to that terminus, but the statute in express words excludes from the boundaries of the district lands lying in Coffey Township. In the recent case of Van Dyke v. Mack, 139 Ark. 524, 214 S.W. 23, we had under consideration a special statute creating a road improvement district which contained substantially the same provision with respect to laying out the route of the road to be improved, and including all lands within a certain distance of that route when selected by the commissioners. We upheld the statute. The decisions of this court in Nall v. Kelley, 120 Ark. 277, 179 S.W. 486, and Conway v. Miller County Highway & Bridge District, 125 Ark. 325, 188 S.W. 822, also sustains this view. In those cases we drew a distinction between statutes which fixed the assessment regardless of the selection of the route, whilst authorizing the commissioners to make a selection, and those statutes which authorize such selection by the commissioners, but provide for the actual assessment of benefits derived from a road along the route so selected. We think there is no valid objection to the exercise of legislative power in that way. It does not constitute a delegation of legislative authority.

The contention that the statute deprived the county court of its jurisdiction has been adversely decided by this court in the recent case of Sallee v. Dalton, 138 Ark 549, 213 S.W. 762, the statute being identical with respect to the selection of a new route where there is no established public road. The statute in this case, as in the case just cited, provides for an order of the county co...