Johns v. Road Improvement Districts of Bradley County

• Decision Date: 02 February 1920
• Docket Number: 152
• Citation: 218 S.W. 389,142 Ark. 73
• Parties: JOHNS v. ROAD IMPROVEMENT DISTRICTS OF BRADLEY COUNTY
• Court: Arkansas Supreme Court

218 S.W. 389

142 Ark. 73

JOHNS v. ROAD IMPROVEMENT DISTRICTS OF BRADLEY COUNTY

No. 152

Supreme Court of Arkansas

February 2, 1920

Appeal from Bradley Chancery Court; E. G. Hammock, Chancellor affirmed.

Decree affirmed.

J. C Clary and B. S. Herring, for appellants.

1. Act 237, the Bradley County Road Act (1919), is unconstitutional and void and is governed by the decisions in 89 Ark. 513; 118 Id. 294, and not by the principles in 213 S.W. 762.

2. It arbitrarily leaves out lands in the central portion of the county and of the twin districts and lands are arbitrarily assessed, although distant from the road and not benefited. 48 Ark. 370; 130 Id. 70; 196 S.W. 931. The act is discriminatory, as it omits certain tracts of lands in the heart of the district and includes others more remote. The evidence shows that an effort has been made to change the new road law by alteration with pen and ink since the Legislature adjourned. The act as passed did not contain the omitted lands when passed. The act is void as a whole. 25 Ark. 246; 34 Id. 224; 49 Id 110. A void act can not be amended. 31 Ark. 701.

3. The act is void for failure to provide a method of assessments. 133 Ark. 64; 201 S.W. 808; 89 Ark. 513.

J. R Wilson, for appellees.

1. The act is not void because it usurps the jurisdiction of the county court; this is practically conceded by appellant. See cases cited in their brief. 89 Ark. 1, the Glover case and Salle v. Dalton case.

2. The act does not create new county officers. 120 Ark. 277.

3. Nor is the act inoperative and ineffectual because it provides a blanket authority to assess benefits in the two districts.

4. There have been no alterations in the act since its proper passage and enrollment. The maps and plats show that the description of the lands would not affect the validity of the act, if left entirely out of the bill. 122 Ark. 491; 126 Id. 172; 130 Id. 70; 214 S.W. 56.

5. The findings of the chancellor are amply sustained by the evidence and are conclusive on de novo hearing. 126 Ark. 224; 9 Id. 350; 192 S.W. 906; 81 Ark. 68; 91 Id 540; 24 Id. 431; 185 S.W. 255.

6. An act duly signed by the Governor and deposited with the Secretary of State raises the presumption that every requirement of law was complied with, unless the contrary is affirmatively shown. 40 Ark. 200; 131 Id. 291; Perry v. State, 139 Ark. 227; 214 S.W. 4. The invalidity of a statute must be proved beyond a reasonable doubt. 33 R. I. 541; 182 A. 487.

Interlineations are not of themselves suspicious when they are mere completions of imperfect descriptions of lands. 1 Enc. of Ev. 118; 61 Ala. 23. Alterations merely to correct an error will be presumed to be properly made. 82 Tex. 352; 18 S.W. 702; 30 Ark. 285; 50 Id. 358. See also 21 Ala. 393; 34 Ark. 588; 98 Id. 269; 109 Id. 4.

MCCULLOCH C. J. HART, J., dissenting. Judge WOOD concurs in the views the writer has expressed.

OPINION

MCCULLOCH, C. J.

Appellants instituted this action below attacking the validity of an act of the General Assembly of 1919 (regular session), creating two improvement districts embracing contiguous territory for the purpose of improving certain roads in that county. Acts 1919, vol. 1, p. 898. The two districts are separately designated, and they are declared to be separate organizations with different commissioners. In other words, the two organizations are entirely separate in every respect, except that they were created by the same statute, which is in that respect similar to the statute which we upheld in the recent case of Van Dyke v. Mack, 139 Ark. 524, 214 S.W. 23.

The dividing line between the two districts is an irregular one, though it follows section and half-section lines, and District No. 1 embraces all of the northern portion of the county except thirty-three sections in the northwest corner of the county, and District No. 2 embraces all of the southern portion of the county, except certain areas in the extreme southern and southeastern part of the county equaling nearly two townships in extent. The boundary line between the two districts does not run straight across the county, but, as before stated, is an irregular line, following, however, section and half-section lines. The territory in District No. 1 runs far down the western side of the county well below the middle line, and the territory in District No. 2 runs up through the center of the county far above the middle line. The city of Warren, which is the county seat, is situated in the northeast portion of the county, and the roads converge, so to speak, from that point. The division line between the two districts is at that point along the southern boundary of the city of Warren. District No. 1 includes several roads to be improved, all converging, as before stated, from the city of Warren. One of those roads begins on the northern boundary of the county in a certain designated section and runs southerly to the city of Warren, and through the city to a certain point along a certain designated street. Another one of the roads begins on the northern boundary of the county, six or eight miles west of the beginning of the other roads, and runs southeasterly to the city of Warren, and thence through the city on designated streets so as to intersect with the other road. The other road to be improved begins on the eastern boundary line of the county, and runs northeasterly to the city of Warren, thence through that city along a certain designated street and thence westward to the town of Banks, and thence southwesterly to a certain point connecting with a public road coming across from Calhoun County. All of these roads are connected together in the city of Warren.

In District No. 2 the principal road to be improved is one beginning in the southern portion of the city of Warren and running thence southerly and southwesterly through the town of Hermitage and thence southwesterly along a designated route to Moro Bay on the southwest boundary line of the county. The only other road to be improved in that district is one forming a loop, which begins at the intersection of what is termed the Hermitage and Ingalls public road with the road last above described at the town of Hermitage, and running southerly to the town of Ingalls on the Chicago, Rock Island & Pacific Railway, thence in a southerly direction to the town of Vick, on said railroad, and thence northeasterly to Johnsville, and thence northeasterly to the intersection at a certain point with the aforementioned road from Warren to Moro Bay.

Appellants are owners of real property in the two districts, and joined, without objection, in a single action against the commissioners of both districts for the purpose of attacking the validity of the statute as a whole. The chancellor upheld the statute, and an appeal has been prosecuted.

The first contention in support of the assault on the statute is that it is discriminatory in its effect in that a certain tract of land situated in the heart of the affected territory, and abutting on one of the public roads, is omitted entirely from each of the districts, whilst other lands more remote are included. The tract alleged to have been omitted intervenes between one of the roads to be improved and other lands which are included, and, if the charge is true that these lands are omitted, it makes clear a case of unwarranted discrimination. Heinemann v. Sweatt, 130 Ark. 70, 196 S.W. 931.

This contention of appellants, however, is based upon the charge that the tract of land in question was omitted from the statute, but that there has been an unauthorized interlineation on the typewritten legislative bill as engrossed, and on the enrolled bill signed by the Governor and now on file with the Secretary of State, showing the inclusion of the tract alleged to have been omitted. In other words, it is conceded that the tract of land in question was included in one of the districts if the face of the enrolled bill be accepted as correct with the interlineation thereon, but appellants contend, and attempt in this case to prove, that the interlineations were unauthorized and were made after the enrolled bill was signed by the Governor and filed in the office of the Secretary of State. Much testimony was adduced bearing on the issue as to when the interlineations were made on the original typewritten bill and the enrolled bill as signed. The testimony adduced by appellants tends to establish the fact that the interlineations describing the tract of land in question were not on the original bill as engrossed after it passed the Senate, and that the interlineations on the enrolled bill were not there when the bill was signed by the Governor and filed in the office of the Secretary of State. On the other hand, the testimony adduced by appellees tends to show that the interlineations on the original bill were made after the bill had been prepared but before its introduction into the Senate, and that the interlineations on the enrolled bill were made with the consent of the enrolling committee of the Senate before it was signed by either of the presiding officers of the two houses of the Legislature or by the Governor. Appellants introduced clerks and assistants in the office of the Secretary of State who testified that they copied the enrolled bill and carefully compared the copy the next morning after the bill was filed in the office of the Secretary of State, and that these interlineations were not there at that time. The Secretary of State furnished to the State printer a duly authenticated copy of the enrolled statute and the copy thus furnished did not show these interlineations. Another copy was furnished to one of the newspapers at Warren, and it did not show the interlineations. A lady who was...