Lamberson v. Collins

• Citation: 185 S.W. 268,123 Ark. 205
• Decision Date: 06 March 1916
• Docket Number: 223
• Parties: LAMBERSON v. COLLINS
• Court: Supreme Court of Arkansas

185 S.W. 268

123 Ark. 205

LAMBERSON v. COLLINS

No. 223

Supreme Court of Arkansas

March 6, 1916

Appeal from Craighead Circuit Court, Jonesboro District; W. J Driver, Judge; reversed.

Judgment reversed, and cause remanded. Rehearing denied.

H. M Mayes, for appellants.

The act is void. 92 Ark. 93, 621; 118 Ark. 119; 115 Id. 88; 115 Id. 594; 116 Id. 167. Other questions are argued but as they are not decided by the court they are not abstracted.

N. F Lamb, for appellees.

1. The act is not unconstitutional and void. Acts containing the same provisions have been upheld. 91 Ark. 30; 91 Ark. 79.

2. The provisions of the act were fully complied with. The discretion of the court below will not be disturbed on appeal. 102 Ark. 553. It is not necessary to set out the kind or particular character of the improvements to be made. 17 S.W. 678; 113 Ark. 193; 97 Ark. 534.

MCCULLOCH, C. J. WOOD and KIRBY, JJ., dissent.

OPINION

MCCULLOCH, C. J.

This is a proceeding which originated in the county court of Craighead County, upon the petition of property owners of that county, for the establishment of a road improvement district, under 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." The petition included a description of the land to be included in the district, and also contained a description of the route of the highways proposed to be improved, and referred to a plat filed with the petition which showed the route of the road drawn to a scale. But there was nothing either in the petition or on the plat showing the plans and specifications or estimates of the cost of the road or the character of the material to be used. Plans and specifications and estimates of the cost were, however, procured from the State Highway Department during the pendency of the proceedings in the county court after the petitions had been filed and notice given by advertisements pursuant to the statute. Appellants appeared as remonstrants against granting the prayer of the petition, and on the hearing of the matter the county court found that the petition contained a majority in value and acreage of the land owners and made an order establishing the district. On appeal to the circuit court, there was a trial which resulted in a like order being made by the circuit court, and an appeal has been duly prosecuted to this court.

The first section of the statute under consideration reads as follows: "Section 1. (A) That whenever a majority in land value, acreage or number of land owners within a proposed road improvement district in any county shall petition the county court to establish a road improvement district to embrace a certain region which it is intended shall be embraced within the boundaries of the proposed district and shall file a plat with said petition upon which the boundaries of the proposed district shall be plainly indicated showing the roads which it is intended to construct and improve as nearly as practicable, and shall also file a good bond conditioned that the petitioners will pay all court costs and legal advertising that may accrue in the event said district is not established, it shall then be the duty of the county court to give public notice by publication in some weekly newspaper having a bona fide circulation in said county by three consecutive insertions therein that said petition has been filed, and giving a description of the territory embraced in said petition in as large subdivisions or calls as practicable, and calling upon all persons, firms or corporations owning land or other real property within the proposed district to appear before the county court on some date to be fixed by the court not less than five days after the last insertion of said notice to show cause for or against the establishment of said district. The original petition may be circulated among the land owners, or such number of exact copies of same as may be deemed necessary may be circulated, and when all of said petitions are filed at or before the time of the hearing above mentioned the said petitions shall be consolidated and treated as one petition, if same are filed before or at the date of said hearing.

"(B) Provided, however, upon application of the county judge, or of ten or more land owners within a proposed road improvement district to the State Highway Commission it shall be the duty of the State Highway Commission to instruct and 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 within said district in the same manner as set out in section 7 of this act, and file them in the county court of said county for the purpose of determining the feasibility of any road improvement and the cost thereof before said petitions are circulated, and when said preliminary plans, specifications and estimates are so made and filed the State Highway Commission, upon the application of either the county judge or ten or more land owners, shall cause to be prepared the petitions to be circulated among the land owners in the proposed district for the purpose of obtaining a majority in land value, acreage or number of land owners, as set out in the preceding section, and when such majority is obtained said petition shall be filed in the county court and a date set for a hearing and due notice thereof given to the owners of real property in said district of said hearing as provided by the preceding section, and when said hearing is so had, the organization of said district shall then proceed in the manner hereinafter prescribed."

There was no attempt to comply with the terms of subdivision (B) in the matter of procuring a preliminary survey and plans specifications and estimates from the State Highway Commission before the circulation of the petition. The contention of counsel for the petitioners is that the two subdivisions of section 1 provide alternative methods of forming a road district, and that having complied fully with the terms of subdivision (A) the district was legally organized merely upon the petition of a majority of...