Lee Wilson & Co. v. Osceola and Little River R. I. Dist. No. 1

• Decision Date: 08 January 1917
• Docket Number: (No. 84.)
• Citation: 192 S.W. 371
• Parties: LEE WILSON & CO. v. OSCEOLA AND LITTLE RIVER ROAD IMPROVEMENT DIST. NO. 1.
• Court: Arkansas Supreme Court

192 S.W. 371

LEE WILSON & CO. v. OSCEOLA AND LITTLE RIVER ROAD IMPROVEMENT DIST. NO. 1.

(No. 84.)

Supreme Court of Arkansas.

January 8, 1917.

On Rehearing, February 26, 1917.

Appeal from Circuit Court, Mississippi County; S. C. Coston, Special Judge.

Appeal by Lee Wilson & Co. from judgment of the circuit court confirming assessment of benefits to landowners in Osceola and Little River Road Improvement District No. 1 and ordering levy of taxes to meet cost of improvements. Reversed and remanded, with directions to set aside assessments and levies.

Hughes & Hughes, of Memphis, Tenn., Lamb & Rhodes, of Osceola, C. A. Cunningham, of Blytheville, and Coleman & Lewis, of Little Rock, for appellants. J. T. Coston and A. F. Barham, both of Osceola, for appellee.

WOOD, J.

This is an appeal from a judgment of the circuit court confirming the assessment of benefits to landowners in appellee district and ordering a levy of taxes to meet the cost of the improvement.

1. Appellants contend that the organization of the appellee district was void because there were no preliminary surveys, plans, specifications, and estimates of the road proposed to be constructed and improved, as required by section 1 (B) of Act 338, Acts 1915, p. 1400-4. This was held in Lamberson v. Collins, 123 Ark. 205, 185 S. W. 268, to be a prerequisite to the organization of the district.

Appellants made no attack upon the organization of the appellee district in the court below. But as the organization of the district was essential to any valid local assessments and levies, the question as to whether there was such organization was one of jurisdiction which appellants have the right to raise at any time. Appellants concede that upon a petition filed in the county court of Mississippi county appellee district was organized, and commissioners for the district were appointed by order of the court.

This appeal is prosecuted from judgments making assessments and levies. This court cannot take judicial knowledge of the fact, if it be a fact, as stated in appellant's brief, that no preliminary surveys, etc., were filed as required by section 1 (B) of Act 338, Acts 1915, before the order of the county court was entered creating appellee district. Appellants did not bring into the record of the circuit court, and have not brought into the record before this court, the proceedings that were had before the county court prior to the creation of appellee district. There is no recital in the judgment of the circuit court and no facts set forth in the bill of exceptions showing that such preliminary surveys, etc., were not made as the law requires. True, there is in the bill of exceptions a report of the commissioners of appellee district showing that after their organization they called upon Pride & Fairley, civil engineers, appointed by the court and employed by them "to prepare preliminary plans, specifications, and estimates of the roads proposed to be constructed, maintained, and repaired." They state specifically and set out in detail what these preliminary plans show as to the general direction of the road to be constructed, their terminii, cuts, fills, grading to be done, bridges and culverts to be constructed, the length, width, and depth of the roads and the character of the materials to be used in their construction, and the estimated cost of the whole improvement. The commissioners state, after thus setting out in detail what these preliminary plans, etc., show, what they estimate the cost to be. Section 7 of the Act 338, supra, provides that the board of commissioners immediately after their organization shall call upon the state highway engineer unless the county judge should deem it advisable to employ some other competent engineer instead to prepare preliminary plans, specifications, and estimates of the roads which it is proposed to construct, etc. It was under the authority of this section, doubtless, that the commissioners acted and made the report which appellants have brought into this record by their bill of exceptions.

But this court, in Lamberson v. Collins, supra, held that the provisions of section 7, supra, were not intended by the Legislature as an alternative method of procedure which could be adopted instead of the method prescribed by section (B) of that act; that it was essential to the creation of the district that the method prescribed by section (B), be followed, notwithstanding the provisions of section 7 permitting the preliminary surveys, plans, etc., therein specified.

Appellants have the burden, even on direct attack, to show that the judgments appealed from are erroneous. They do not pretend that the record of the county court creating the district fails to show that the preliminary surveys, plans, etc., were filed as required by section 1 (B) of the Alexander Road Law. There are no recitals in the judgments under review showing that these preliminary surveys, etc., were not made, or that the judgment of the county court creating the district fails to recite these facts essential to its jurisdiction. Nor do appellants bring into the record by bill of exceptions facts showing that such preliminary surveys, etc., were not made. The report of the commissioners to the county court made under section 7 of the act after the order of the court creating the district and appointing the commissioners does not prove, or even tend to prove, that the provisions of section 1 (B) had not been complied with.

Section 1 (B), as held in Lamberson v. Collins, supra, "was intended to provide a source of information as to the magnitude and cost of the improvement" for the benefit of property owners before they sign and present their petition for the creation of the district, and as section 7 was not intended as an alternative method, as held in Lamberson v. Collins, the fact that the commissioners, after the district was created, complied with the provisions of this section, does not show that the provisions of section 1 (B) were not complied with.

We conclude, therefore, in the absence of any showing in this record to the contrary, that the circuit court in the exercise of its appellate jurisdiction duly ascertained that the county court had rightly exercised its original jurisdiction in the creation of the district, without which the circuit court would have had no jurisdiction to...