Heinemann v. Sweatt

• Decision Date: 25 June 1917
• Docket Number: 59
• Citation: 196 S.W. 931,130 Ark. 70
• Parties: HEINEMANN v. SWEATT
• Court: Arkansas Supreme Court

196 S.W. 931

130 Ark. 70

HEINEMANN v. SWEATT

No. 59

Supreme Court of Arkansas

June 25, 1917

Appeal from Jackson Chancery Court; Geo. T. Humphries, Chancellor reversed.

Decree reversed and cause remanded.

Campbell & Suits, for appellant.

1. A local improvement district must be composed of adjacent compact, contiguous and continuous territory. The question of boundaries is closely scrutinized. The lands must be contiguous. 126 Ark. 416; Ib. 172; 122 Ark. 491; 120 Id. 230; 105 Id. 380; 35 Id. 58; 15 Cyc. 309; 28 Id. 120, 150, 193; 54 Ark. 321; 55 Id. 609; Ib. 618; 35 Cyc. 856-7; 38 Id 601.

2. The Legislature can not confer on Jackson County extraterritorial authority.

3. Publication in a newspaper in Jackson County can not bind lands in Woodruff County. 96 Ark. 410, does not help defendant.

Jno. W. & Jos M. Stayton, for appellees.

1. The Legislature intended to include the W1/2 of section 28, not 26, a mere clerical error which is subject to correction. 35 Ark. 59; 37 Id. 495; 58 Id. 116; 100 Id. 180.

2. But the W1/2 of section 26 may be stricken out and the validity of the act supported. 92 Ark. 100; 89 Id. 466.

3. No extraterritorial jurisdiction is conferred upon the Jackson County court. 96 Ark. 417.

4. Publication in Jackson County newspapers was sufficient. 83 Ark. 348; 96 Id. 424.

OPINION

MCCULLOCH, C. J.

This is an attack upon the validity of a statute enacted by the General Assembly of 1917 (Act No. 165), creating a road improvement district designated as Road Improvement District No. 3 of Jackson County, to improve a public road in that county known as the Newport and Augusta Road, which is specifically described in the statute. The controversy arises in a suit instituted by appellant who is the owner of a tract of land within the boundaries of the district, against the commissioners named in the statute, and appellant seeks to restrain the commissioners from proceeding with the construction, the assessment of benefits and levy of taxes and the issuance of bonds. The territory embraced in the district is not described by metes and bounds, but each tract of land embraced therein is described according to the method of description adopted on the plats of the government survey. The lands lie in a compact body on each side of the road to be improved, except that one tract of eighty acres is disconnected from the other lands, and lies two miles distant from any of the other tracts, and two miles distant from the road to be improved, the intervening lands not being embraced in the district.

The situation thus described with respect to the one disconnected tract is the ground for the principal attack made in this case on the validity of the statute. The road is on the section line between sections sixteen (16) and seventeen (17), sections twenty (20) and twenty-one (21), sections twenty-eight (28) and twenty-nine (29), and sections thirty-two (32) and thirty-three (33), in township (11) north, range two (2) west, but no part of section twenty-eight (28), which abuts on the road, is described. The east half of each of the other sections abutting on the west side of the road are included, and the west half of section twenty-six (26) in that township is included, the last named tract being entirely disconnected from the main body of lands described, and all of sections twenty-seven (27) and twenty-eight (28) lie between it and the proposed road.

It is insisted by counsel for appellee that the inclusion of the east half of section twenty-six (26) was an obvious error in framing the statute and that the east half of section twenty-eight (28) was intended to be included, and ought to be treated as being included in the district instead of the tract in section twenty-six (26). In support of that contention counsel call attention to the form in which the framers of the statute grouped the descriptions as clearly indicating an intention to describe the west half of section twenty-eight (28) instead of the west half of section twenty-six (26). All of the lands on the east side of the road are first described and then the following numbers are given in describing the lands on the west side:

"The west half of sections sixteen (16), twenty-one (21), twenty-six (26) and thirty-three (33), of township eleven (11) north, range two (2) west."

The method of description adopted by the Legislature does, indeed, indicate an intention to embrace all the lands abutting on the west side of the road, and this would indicate that a mistake was made in describing a portion of section twenty-six (26) instead of a portion of section twenty-eight (28), but it is quite a different question for us to undertake to treat this as merely a clerical error and undertake to correct the error by substituting a description of land which the framers of the statute entirely omitted. We may be fully satisfied that the Legislature intended to describe section twenty-eight, but yet we are powerless to correct the error, for the simple reason that to do so would be purely a matter of legislation on our part. That would constitute an amendment of the statute to conform to what we conceive to be the legislative intent. In other words, the case presents a situation where we are reasonably certain that the language used does not express the legislative will, yet we are not at liberty to substitute the language which we think will express it.

The question comes down to this: Could the owner of the west half of section twenty-eight (28) complain if we were to construe the statute to include that tract? Unquestionably, the owner could complain, for the simple answer to that construction would be that the Legislature has not written the words into the statute which would constitute authority to assess that tract of land as a part of the lands affected by the improvement. It would be clearly a judicial encroachment upon the rights of the owner of that tract for the courts to undertake to substitute words describing that tract of land instead of words which the framers of the statute used in describing another tract. If the Legislature had given any other method of description, even though it conflicted with the present designation of boundaries by listing the lands we might by construction reconcile the...