Massey v. Arkansas & Missouri Highway Dist.

• Decision Date: 03 March 1924
• Docket Number: (No. 201.)
• Citation: Massey v. Arkansas & Missouri Highway Dist., 259 S.W. 387, 163 Ark. 63 (Ark. 1924)
• Parties: MASSEY v. ARKANSAS & MISSOURI HIGHWAY DIST. IN PULASKI COUNTY. MILLER v. SAME.
• Court: Arkansas Supreme Court

259 S.W. 387

MASSEY v. ARKANSAS & MISSOURI HIGHWAY DIST. IN PULASKI COUNTY.

MILLER v. SAME.

(No. 201.)

Supreme Court of Arkansas.

March 3, 1924.

Dissenting Opinion, March 11, 1924.

Rehearing Denied March 24, 1924.

Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor.

Separate actions by R. Massey and by one Miller against the Arkansas & Missouri Highway District, in Pulaski County. Decrees for defendant, and plaintiffs appeal. Affirmed.

Will G. Akers, J. C. Marshall, McConnell & Henderson, and Cockrill & Armistead, all of Little Rock, for appellants.

Rogers, Barber & Henry and Rose, Hemingway, Cantrell & Loughborough, all of Little Rock, for appellee.

McCULLOCH, C. J.

There are before us two separate actions involving the same subject-matter, namely, an attack on the validity of a statute authorizing the improvement of a public road in Pulaski county, and also an attack on the assessment of benefits and other proceedings of the board of commissioners. The two cases are consolidated here, and both will be disposed of in this opinion.

The Arkansas & Missouri highway district in Pulaski county was created by Act No. 82 of the General Assembly of 1919, and its validity was upheld by this court in the case of Van Dyke v. Mack, 139 Ark. 524, 214 S. W. 23. That statute authorized the selection of the route of the road by the commissioners of the district, and the road selected by the commissioners runs from the north end of Main street, in the city of North Little Rock, in a general northeasterly direction, to the Lonoke county line. Another part of the route was selected along East Third street, in the city of North Little Rock, running from what is known as the Galloway pike eastward to Main street. Later in the same session of the General Assembly Act No. 128 was passed, authorizing the addition of another route known as the Jacksonville lateral, and running east from Main street in North Little Rock at Thirteenth street, out that street in an easterly direction to the city limits, and thence to Booker on the line of the railroad, thence to Jacksonville, and thence northeast along a specified route to a junction with the other route selected by the board of commissioners, known as the main line.

During the extraordinary session of 1920 the General Assembly passed separate statutes authorizing the construction of certain laterals, designated, respectively, as the Tate's Mill lateral, the East Ninth Street lateral, and another lateral, but all of these last mentioned were stricken down as invalid under the decision of this court in the case of White v. Arkansas & Missouri Highway District, 147 Ark. 160, 227 S. W. 261, 596.

It appears from the proof in this case that under the original statute creating the district and under Act No. 128 of the General Assembly of 1919, supra, there was constructed the improvement of Third street by hard-surface pavement, and about 1½ or 2 miles of hard-surface pavement of the main line running northward from the north end of Main street in North Little Rock, and the grading of the remainder of the road and the construction of bridges, and also the paving of Thirteenth street inside the city limits a distance of only a few blocks, and the grading of a portion of the remainder of that road to Jacksonville. Assessments of benefits were levied for the construction of those projects, and bonds were issued, which are still outstanding. After the decision holding invalid the statutes of the extraordinary session of 1920, referred to above, the work was stopped altogether, for the want of funds, and the statute which is now under consideration was enacted by the General Assembly of 1923 (Special Acts 1923, p. 380), purporting to amend the original Act No. 82 creating the district, and authorizing the inclusion into the district and improvement of another road described in section 5 of the statute, which reads as follows:

"The board of commissioners shall lay out and construct a road running from a point on the highway built by the North Little Rock & Galloway highway district at or near what is known as Prothro's Gin, where the present Jacksonville road intersects the said Galloway pike, to a point on the Jacksonville lateral road, as may be selected by the commissioners, and via Booker, McAlmont and Jacksonville to the Lonoke county line, said road to have an eighteen-foot paved surface of asphalt or concrete, as the commissioners may deem best, and if asphalt type road is used it shall have a concrete header on either side to prevent spreading, and all quarter sections of land north of the Arkansas river where any part of same is within five miles of said road as planned, shall be added to and included in the district, if not now included in the district."

The caption of the statute is "An Act to amend Act Number 82 of the Acts of 1919."

The first section of the statute removes the old members of the commission, increases the number to five, and designates the new members by name, prescribes the salary and the method by which vacancies may be filled from time to time. Another section (section 4) directs the commissioners to make application for state and federal aid which had already been allotted and uncollected on the portion of the road to be improved under the prior statutes. Another section (section 11) authorizes the commissioners to remove the assessors at will and select a successor.

Section 13 of the statute reads as follows:

"The board of commissioners at the time an assessment of benefits is filed, or at any subsequent time, shall make an order which shall be filed with the county clerk, which shall have all the force of judgment, provided there shall be assessed upon the real property of the district, a tax sufficient to pay the estimated cost of the improvement, with ten per cent. added for unforeseen contingencies, which tax is to be paid by the real property in the district in the proportion to the amount of the assessment of benefits thereon, which is to be paid in annual installments payable not to exceed four per cent. for any one year as may be provided in such order. The tax so levied shall be a lien upon all the real property in the district from the time the same is filed with the county clerk and shall be entitled to preference over all demands, executions, encumbrances or liens whatsoever created and shall continue until such assessment with any penalties and costs that may accrue thereon, shall have been paid. The remedy against such assessment of taxes shall be by appeal, and such appeal must be taken within twenty days from the time that said assessment has been filed with the county clerk and on such appeal the presumption shall be in favor of the legality of the tax. Any owner of real property in the district may by mandamus compel compliance by the board of commissioners with the terms of this section. Provided, that the levy or levies on the assessment of benefits as herein provided for shall in no case exceed the total assessed benefits and interest thereon."

Section 14 places a restriction upon the percentage of expenditures for expenses of engineers, attorneys' fees and incidental expenses. Other sections referred to the laterals mentioned in former statutes relating to this district.

The board of commissioners authorized under the statute last referred to proceeded to carry out the terms of the statute by forming plans for improving the road from Prothro's Gin on the Galloway pike to the Lonoke county line. They appointed an assessor, who proceeded to make an assessment of benefits, which was reported to the commissioners and filed with the clerk of the county court, and, after hearing protests, the taxes were levied on these assessments of benefits, payable in annual installments of 5 per centum of the cost of the improvement, including 10 per centum added for unforeseen contingencies.

The appellants in these two actions are owners of real property in the district, and they attack the validity of the statute, also the validity of the assessments, and the amount of the annual levy, and they also contend that the proceedings are void because in conflict with the terms of section 25 of the act of the extraordinary session of 1923 (Acts Extra Session 1923, p. 11) requiring an election to be held before proceeding under special statute to construct an improvement.

The first ground of the attack on the validity of the statute itself is that it authorizes the improvement of a certain road and the assessment of benefits to pay for the improvement, but fails to provide a method for assessing the benefits and in levying and collecting the taxes. This question, as well as most of the other questions in the case, turns on the construction of the statute to determine whether it authorizes a separate improvement, with separate methods of operation, or whether it constitutes an incorporation of the new provisions into the old statute.

It will be observed that section 13 of the statute authorizes the assessment of benefits, but does not provide a complete method for assessing the benefits and enforcing the same. It contains no provision for notice of assessments and a hearing to be afforded to owners of property, and, unless the statute is connected up with the original act creating the district, which contains such provisions, then the statute is void, for the reason that, where the lawmakers delegate to subordinate agencies or other tribunals authority to make assessments, owners of property are entitled to a hearing; otherwise it constitutes the taking of property without due process of law.

Learned counsel for appellants insist that this case is controlled by our decision in White v. Arkansas & Missouri Highway District, supra, where we held the statutes enacted by the extraordinary session of 1920 to be invalid. While there are some points of similarity between the statutes involved in that decision and the one now under...