Higginbotham v. Road Improvement Dist. No. 3

• Court: Arkansas Supreme Court
• Writing for the Court: McCulloch
• Citation: Higginbotham v. Road Improvement Dist. No. 3, 241 S.W. 866 (Ark. 1922)
• Decision Date: 05 June 1922
• Docket Number: (No. 37.)
• Parties: HIGGINBOTHAM v. ROAD IMPROVEMENT DIST. NO. 3 OF LONOKE COUNTY.

Page 866

241 S.W. 866

HIGGINBOTHAM v. ROAD IMPROVEMENT DIST. NO. 3 OF LONOKE COUNTY.

(No. 37.)

Supreme Court of Arkansas.

June 5, 1922.

Appeal from Lonoke Chancery Court; Jno. E. Martineau, Chancellor.

Suit by J. D. Higginbotham against Road Improvement District No. 3 of Lonoke County. Judgment for defendant, and plaintiff appeals. Affirmed.

Morris & Morris, of England, for appellant.

Chas. A. Walls, of Lonoke, for appellee.

McCULLOCH, C. J.

Appellee is a road improvement district created by the county court of Lonoke county pursuant to the terms of a special statute applicable to that county (Acts 1913, p. 864), and the road specified in the organization of the district was improved at a cost of $105,000, exclusive of interest on bonds.

The General Assembly, at the extraordinary session held in February, 1920, enacted another statute amending the former statute, referred to above, by conferring authority upon the districts formed under the original statute to provide for the repair and maintenance of the roads constructed and also to improve certain lateral roads running out from the main road which had been improved.

The section of the new statute, containing the authority to provide for the repair and maintenance of the road, reads as follows:

"Section 2. The board of commissioners of road improvement districts number one (1), two (2), three (3), four (4), five (5), six (6), seven (7), eight (8), all of which were created under the terms and provisions of Act 212 of the acts of 1913, and the board of commissioners of any district which may be hereafter created in Lonoke county, under the terms and provisions of said act, or under the terms and provisions of any general act applicable to the county, are hereby required to maintain and repair the roads constructed under their supervision, subject to the approval of the county court, and in order that said roads may be properly maintained and repaired, it shall be the duty of the board of commissioners of said districts to cause a competent engineer to make an estimate of the cost thereof from time to time, which shall be reported to the county court. If the county court finds the cost of said maintenance and repair to be reasonable and to the best interest of the district, it shall authorize the board of commissioners of said district to borrow money for the purpose of maintaining and repairing said roads, and shall enter a levy upon the property previously assessed for a sum sufficient to maintain and repair said roads, which levy shall be added to and collected with the annual tax already levied for the original improvement. All lands and other real property in said districts are hereby declared to be benefited in proportion that the cost of said maintenance and repairs bears to the present assessment of benefits now in force in said districts; provided that nothing in this act shall be construed as prohibiting a reassessment of benefits when ordered; provided further, that if any district shall have issued interest-bearing obligations, the total amount of the assessed benefits in any district shall never be reduced."

The section of the new statute authorizing appellee to construct a lateral is as follows:

"Section 5. The board of commissioners of road improvement district No. 3, of Lonoke county, Arkansas, are hereby authorized and empowered to improve, by grading, draining and surfacing the following described public road in said district, to wit: Beginning at or near the northeast corner of the northeast quarter of the northeast quarter of section fifteen (15), township two (2) south, range nine (9) west, where a public road joins the macadam road already constructed in said district, and running thence in a southeasterly direction following said public road to about the southwest corner of the southeast quarter of section 23, township 2 south, range 9 west; thence continuing along said public road in a southerly direction to the northwest corner of the northeast quarter of section 35, township 2 south, range 9 west; thence east along the public road to the northeast corner of section 36, where Indian Bayou drainage ditch in Indian Bayou drainage district number 2 intersects said public road.

"That the commissioners of road improvement district number 3, of Lonoke county Arkansas, are hereby authorized and empowered to borrow such sums of money that may be required to construct the five miles of road above described, and when said money is so borrowed, the commissioners shall call upon the county court to levy a tax upon the present assessment of benefits in force in said district sufficient to pay the cost thereof, which levy shall be added to and collected with the annual tax already levied for the original improvement."

Section 6 of the new statute is as follows:

"If any owner of real property finds that, by reason of the construction of the road set out in sections three (3) and four (4) and five (5) of this act, that the assessment of benefits previously made has become inequitable by reason thereof, they shall file a petition with the commissioners of the district affected, asking that the benefits be reassessed, and the board of...