Massey v. Arkansas & Missouri Highway District In Pulaski County

• Decision Date: 03 March 1924
• Docket Number: 201
• Citation: 259 S.W. 387,163 Ark. 63
• Parties: MASSEY v. ARKANSAS & MISSOURI HIGHWAY DISTRICT IN PULASKI COUNTY
• Court: Arkansas Supreme Court

259 S.W. 387

163 Ark. 63

MASSEY v. ARKANSAS & MISSOURI HIGHWAY DISTRICT IN PULASKI COUNTY

No. 201

Supreme Court of Arkansas

March 3, 1924

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

Decree affirmed.

Will G. Akers, for appellant Massey.

The assessment and the levy are void on their face. 151 Ark. 489; 150 Ark. 525; 153 Ark. 593. The rule applied in White v. Highway District, 147 Ark. 160 and that applied in Swepston v. Avery, 118 Ark. 294, have been violated by the assessment of August 3 1923, and it is therefore void. Act 198 of 1923 is in principle identical with the acts heretofore held void in the case of White v. Highway District, supra. The records show no referendum and no expression of the landowners in favor of the continuance of the work, as is contemplated by act No. 5, extraordinary session 1923, § 25.

J C. Marshall, Henderson & McConnell, and Cockrill & Armistead, for appellants.

1. The assessment and levy of taxes are each void on the face and subject to collateral attack.

Section 13 of act 198 provides that the levy made shall not exceed four per cent. for any one year. The act refers only to the Prothro Gin road, but the assessment and levy are combined for all purposes, and the order of levy made by the commissioners is for five per cent. per annum on the assessed benefits for 25 years.

Act 82 provides by § 8 thereof that the levy of tax shall be made by order of the county court. This necessarily applies to any reassessment. Act 198 provides that the levy thereunder, which could only be for the Prothro Gin road, shall be made by order of the commissioners.

The assessment is so grossly excessive as to be void on its face. The estimated cost of improvement filed August 3, 1923, inclusive of ten per cent. for contingencies, amounts to $ 556,866 for new work; there is added the "cost of work previously done," $ 761,071.10; yet the levy of tax is for 125 per cent. of $ 1,919,962, or $ 2,400,000. 150 Ark. 199; 151 Ark. 489; 150 Ark. 525; 139 Ark. 431; 97 Ark. 330. The assessment is admitted to be for expenditures in excess of the previously assessed benefits. Such expenditures are clearly illegal. 119 Ark. 199; 153 Ark. 593.

The assessment is void because it blankets the project of act 198, which is distinct, with the projects of the earlier acts, and those not covered by any law, such as the Third Street lateral, and those covered by void laws, such as the East Ninth Street project, and also combines in the mass costs incurred in excess of the previous assessment of benefits, which represent illegal expenditures. 147 Ark. 165; 118 Ark. 294.

The assessment is void because it is a reassessment without notice. Act 82, §§ 15, 16.

2. By reason of the fact that no assessment is provided for in act 198, by reference or otherwise, the one now made is void for the reason given in the White case, 147 Ark. 160. 158 Ark. 519; 159 Ark. 569; 142 Ark. 52, 59.

Rogers, Barber & Henry and Rose, Hemingway, Cantrell & Loughborough, for appellee.

1. It is fundamental in this State that every improvement must be a unit, with a single assessment for the entire work. Here there is an actual continuity of roads, so that there is no gap anywhere that has to be bridged over. That such a system of roads constitutes a single improvement no longer admits of question. 125 Ark. 325; 137 Ark. 354; 139 Ark. 595; 138 Ark. 549; 142 Ark. 552; 144 Ark. 46; 150 Ark. 127; 135 Ark. 524; 147 Ark. 164.

2. The assessment of benefits, representing the views of the assessor, a man chosen because of his peculiar qualifications for the work, and of the board of commissioners, a body of business men residing in the district, who sat with him, in its equalization, will not be disturbed by this court, unless abuse is shown, and it affirmatively appears that no benefit can accrue from the improvement. 134 Ark. 14; 143 Ark. 203, 204; 151 Ark. 484; 155 Ark. 89; 139 Ark. 277; 144 Ark. 632; 147 Ark. 469; Id. 363; 153 Ark. 587; 159 Ark. 84; 98 Ark. 544; 133 Ark. 125; 139 Ark. 322; 141 Ark. 164; 251 S.W. 12.

3. The suit was brought too late. The act 198 provides that the assessment and tax levy shall be conclusive unless an appeal is taken within twenty days from the time the assessment of benefits is filed with the county clerk. Such a limitation is valid. 139 Ark. 567; 151 Ark. 484; 152 Ark. 422; 158 Ark. 330. Any complaint which is essentially an attack upon the assessment of benefits must be filed within the time limited. 150 Ark. 443; 151 Ark. 484; 155 Ark. 89; 144 Ark. 642; 147 Ark. 469; Id. 363; 153 Ark. 587; 159 Ark. 84; 98 Ark. 544; 134 Ark. 14. When taxpayers stand by and permit improvements to be made, they will not be allowed to defeat the taxation necessary to pay for the benefits which they have received. 158 Ark. 58; 55 Ark. 148; 47 Ark. 269; 43 Ark. 275; 81 Ark. 244; 79 Ark. 229; 116 Ark. 377; 96 U.S. 341; 177 U.S. 67; 161 U.S. 200; 98 U.S. 308; 151 U.S. 294.

4. There is no merit in the contention that the notice of the assessment is void. The mere fact that it is a second assessment of benefits does not involve any difference in the notice. It is exactly in the form pre-scribed by the statute, act 82 of 1919, § 16. And this section, which counsel apparently overlook in contending that there can be no reassessment of benefits unless there is a change of plans, refutes that contention. And the authority to make a complete reassessment is upheld in 145 Ark. 438, and 153 Ark. 635.

5. The assessment of benefits properly covers work already done. 43 S.Ct. 261; 139 Ark. 347-8; 156 Ark. 267; 154 Ark. 554.

6. The tax levy is not in violation of the statute. Act 82 of 1919, § 7; act 198 of 1923, § 13. The 4 per cent. referred to in the act of 1923 is the same as the 5 per cent. referred to in act 82 of 1919, providing that "all such assessments shall be made payable in installments, so that not more than 5 per cent. shall be collected in any one year, against the wishes of landowners; and in the event that any landowner avails himself of this indulgence, the deferred installments of the assessed benefits shall bear interest at the rate of 6 per cent. per annum." 122 Ark. 291; 141 Ark. 238; 139 Ark. 4; 144 Ark. 495; 145 Ark. 487.

7. There is no foundation in fact for the contention that the levy is so grossly excessive as to be void on its face. From the tables showing the maturities of the two bond issues, it appears that the face of said obligations, with interest added, plus the statutory 10 per cent. for contingencies, will amount to the exact sum which has been levied by the commissioners. This 10 per cent. margin is essential, not only to provide a fund to pay the cost of collection, etc., but also to cover deficiencies caused by the failure of some taxpayers to pay their taxes. 139 Ark. 431; 147 Ark. 450.

MCCULLOCH C. J. HART, J., dissenting.

OPINION

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.

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 one and a half or two 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...