Jones v. Road Improvement No. 1 of Sevier County, Arkansas

• Decision Date: 18 December 1916
• Docket Number: 46
• Citation: 190 S.W. 567,126 Ark. 318
• Parties: JONES v. ROAD IMPROVEMENT NO. 1 OF SEVIER COUNTY, ARKANSAS
• Court: Arkansas Supreme Court

190 S.W. 567

126 Ark. 318

JONES v. ROAD IMPROVEMENT NO. 1 OF SEVIER COUNTY, ARKANSAS

No. 46

Supreme Court of Arkansas

December 18, 1916

Appeal from Sevier Circuit Court; Jefferson T. Cowling, Judge affirmed.

Affirmed.

B. E Isbell, for appellant.

1. The act provides for the construction of a new road and violates the Constitution. 92 Ark. 93, 621; 118 I d. 669; 115 Id. 88; Ib. 594; 116 I d. 167. This point and these authorities were cited in 123 Ark. 205; Act 338, 1915. The road was not laid out and dedicated as provided by law. All facts essential to jurisdiction must appear upon the face of the record. 123 Ark. 195; Ib. 211; Ib. 283; 103 Ark. 446; 54 Ib. 627; 51 I d. 34.

2. There was not a majority when the petitions were filed. 123 Ark. 305; Ib. 298.

3. The organization of the district was not to the best interest of the land owners. The uncertainty should be resolved in favor of the land owner. 106 Ark. 304; 116 Id. 30.

Lake & Steel and James D. Head, for appellees.

1. The road was properly established. 50 Ark. 53; 102 I d. 533; 89 I d. 513; Act 422, 1911. The change was properly made by formal order. 102 Ark. 553.

2. All conditions precedent to jurisdictions must be shown and were shown here. This was a road by dedication and use. 50 Ark 53; 102 I d. 533; 89 I d. 513; 123 Ark. 298; Ib. 305; 124 Ark. 234.

3. The change was properly made. All jurisdictional facts were shown and the act was fully complied with. The petitions were consolidated and treated as one. 72 Ark. 187; 73 I d. 270.

4. The testimony does support the judgment. 40 Ark. 290; 123 I d. 298.

OPINION

MCCULLOCH, C. J.

The county court of Sevier County, on the petition of what was found to be a majority of the owners of real estate in the locality affected, made an order forming a road improvement district pursuant to the terms of Act No. 338 of the General Assembly of 1915, entitled, "An act providing for the creation and establishment of road improvement districts for the purpose of building, constructing and maintaining the highways of the State of Arkansas." Appellants, who are the owners of real property in the district, appeared in apt time and filed a remonstrance against the organization of the district, and they appealed to the circuit court from said order. On the trial in the circuit court, there was a finding in favor of the petitioners, and the court rendered a judgment affirming the judgment of the county court, and an appeal has been duly prosecuted to this court.

The first point made against the validity of the proceedings is that there is no legal evidence in the record as to a request, either by the county judge or by ten property owners, to the State Highway Commission for the survey of the line of the road as required by the terms of the statute. The statute provides that upon the application of the county judge or ten or more land owners within a proposed district to the State Highway Commission, it shall be the duty of the Commissioners to direct the State Highway Engineer, or his assistant, "to prepare preliminary surveys, plans, specifications and estimates of the roads which it is proposed to construct and improve," and file the same in the county court for the purpose of determining the feasibility of the project and the costs thereof, and that said surveys, plans, specifications, etc., shall be filed in the county court before the petitions are circulated among the property owners.

It is contended that the request to the State Highway Commission is a jurisdictional step in the proceedings, and that the evidence thereof must affirmatively appear in the record. We held in Lamberson v. Collins, 123 Ark. 205, 185 S.W. 268, that the requirement for the making of the surveys, plans, maps, estimates, etc., by the State Highway Engineer, and filing same in the county court before the circulation of the petition, was jurisdictional, and that the failure to comply with that provision was fatal to the validity of the organization. It is quite another question, however, whether the request by the county judge or the number of land owners mentioned, to the State Highway Commission is jurisdictional. The important thing that was evidently in the mind of the lawmakers was to provide some means whereby the property owners could know in advance what steps they were called on to express an opinion about in signing or refusing to sign the petitions circulated. It is not so much a matter why the surveys, plans and estimates were prepared, but the fact that they were prepared and filed with the county court is the jurisdictional requirement set forth in the statute. The request may be made either by the county judge or by ten property owners, and this is directed to the State Highway Commission and not to the county court, so it is evident that the Legislature did not intend to make the jurisdiction of the court depend upon the request to the State Highway Commission, and evidence of that request is not essential to the validity of the proceeding. The provision about the method of obtaining the surveys and plans is only directory.

It is next contended that the proceeding is void because some of the petitions were filed after the publication of the notice. It appears from the record that the four petitions containing more than three hundred names of the owners of real property in the district, were filed on May 9, 1916, and on that day the county court made an order fixing the first day of June, 1916, as the date for hearing the petitions, and the notice was then published as provided by statute, but that on May 31, other petitions were filed containing names necessary to make up...