Heinemann v. Sweatt

• Decision Date: 25 June 1917
• Docket Number: (No. 59.)
• Citation: 196 S.W. 931
• Parties: HEINEMANN v. SWEATT et al.
• Court: Arkansas Supreme Court

196 S.W. 931

HEINEMANN v. SWEATT et al.

(No. 59.)

Supreme Court of Arkansas.

June 25, 1917.

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

Suit by S. Heinemann against W. T. Sweatt and others to restrain defendants, as Road Commissioners, from proceeding with highway construction, assessment of benefits, levy of taxes, and issuance of bonds. Decree for defendants, and plaintiff appeals. Reversed and remanded, with directions.

Jno. W. & Jos. M. Stayton, of Newport, for appellant. Campbell & Suits, of Newport, for appellees.

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 80 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 16 and 17, sections 20 and 21, sections 28 and 29, and sections 32 and 33, in township 11 north, range 2 west, but no part of section 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 26 in that township is included, the last-named tract being entirely disconnected from the main body of lands described, and all of sections 27 and 28 lie between it and the proposed road.

It is insisted by counsel for appellee that the inclusion of the west half of section 26 was an obvious error in framing the statute, and that the west half of section 28 was intended to be included, and ought to be treated as being included, in the district instead of the tract in section 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 28 instead of the west half of section 26. All of the lands on the west side of the road are first described and then the following numbers are given in describing the lands on the east side:

"The west half of sections 16, 21, 26, and 33, of township 11 north, range 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 26 instead of a portion of section 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 28, 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 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...