Higginbotham v. Road Improvement District No. 3

• Court: Arkansas Supreme Court
• Writing for the Court: MCCULLOCH, C. J.
• Citation: Higginbotham v. Road Improvement District No. 3, 241 S.W. 866, 154 Ark. 112 (Ark. 1922)
• Decision Date: 05 June 1922
• Docket Number: 37
• Parties: HIGGINBOTHAM v. ROAD IMPROVEMENT DISTRICT NO. 3

241 S.W. 866

154 Ark. 112

HIGGINBOTHAM v. ROAD IMPROVEMENT DISTRICT NO. 3

No. 37

Supreme Court of Arkansas

June 5, 1922

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

Affirmed.

Morris & Morris, for appellant.

1. The right of the commissioners to maintain the roads in the district is not denied. 140 Ark. 381; 143 Id. 228. But, in this instance, it is not maintenance or repair work that is in contemplation, but reconstruction. That, we think was not intended by the act. 7 Words and Phrases, 6100. It cannot be that the Legislature intended to empower the commissioners to expend for repairs a sum so nearly equal the initial cost of the improvement. See § 2 of the amendatory act.

2. Section 3 of the amendatory act is invalid and unconstitutional in requiring the commissioners to construct five miles of new road within their district, because the construction of this lateral road will not benefit the lands of the plaintiffs. 83 Ark. 54.

Chas A. Walls, for appellee.

1. So far as pertains to the right to maintain and repair roads is concerned, 140 Ark. 381 and 143 Ark. 248, cited by appellant, and 144 Ark. 494, are controlling. The language employed by the Legislature in the act in question amounts to a legislative finding that the lands in the district are benefited to the extent of the repairs and maintenance. This finding should be conclusive. 83 Ark. 54; 112 Ark. 357; 140 Ark. 381; 144 Ark. 494; 147 Ark. 112; 83 Ark. 334; 47 Pa.St. 362; 142 Ky. 46. See 7 Words and Phrases, 6096-6101, and 4 Id. 2nd Series, 271-275 for definition of "repair" and "repairs". It is generally held that the words "maintain and repair" are synonymous terms and mean the same thing. 111 Iowa 310; Webster's Dict.; 155 Mo. 391.

2. That the act is invalid in authorizing the construction of the lateral road is not supported by the previous decisions of this court. Both by the original act, act 212 Acts 1913, §§ 15, 18, and by the amendatory act, act 133, Acts 1920, § 6, the property owner is amply protected, and is afforded ample remedy to correct any injustice or inequalities in assessments or reassessments.

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

OPINION

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. 64), 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 he 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 commissioners shall order a reassessment of the lands affected, or if the commissioners of said districts find that any assessment has become inequitable, they shall order assessors for said district to reassess the benefits upon the lands or other real property...