McClelland v. Pittman

• Decision Date: 30 June 1919
• Docket Number: 66
• Citation: 213 S.W. 755,139 Ark. 341
• Parties: MCCLELLAND v. PITTMAN HAMBY v. PITTMAN
• Court: Arkansas Supreme Court

213 S.W. 755

139 Ark. 341

MCCLELLAND v. PITTMAN

HAMBY v. PITTMAN

No. 66

Supreme Court of Arkansas

June 30, 1919

Appeal from Nevada Chancery Court; Jas. D. Shaver, Chancellor affirmed.

Decree affirmed.

Hamby & Hamby, for appellant.

The court erred in sustaining the demurrer to the complaint. The complaint alleges that plaintiff's property outside of Prescott will not, and can not possibly be benefited by any of the five roads embraced in the special act. The demurrer admits this, and the property should have been his property from the effect of the act. By the terms of this act the county court is deprived of its constitutional jurisdiction. 89 Ark. 513; 92 Id. 93; 104 Ark. 425; 125 Id. 525. It permits the district to issue interest-bearing bonds, or indebtedness, contrary to our Constitution. Const. 1874. The act deprives owners of real property in the district of the right or opportunity of an impartial investigation before an impartial tribunal and the right of appeal. Const. Ark. 1874, and Const. U. S. No notice was given as required by law of the special act, and it is void. 86 Ark. 231. There is no limit to the amount of cost. It is so alleged and is admitted by the demurrer. Const 1874.

McRae & Tompkins and H. B. McKenzie, for appellees.

1. The Legislature has declared the lands benefited, and that settles it. The Legislature can delegate its power to other agencies as arms of the State to carry out its powers and intention. Their acts cannot be attacked except for fraud or prejudice or demonstrable mistake, and none is shown. 98 Ark 543; 103 Id. 452; 113 Id. 493; 98 Id. 113; 103 Id. 127; 98 Id. 113.

2. The courts take judicial knowledge of public surveys and maps sections, townships, ranges and base lines, etc. 28 Ark. 378; 34 Id. 224; 113 Id. 316; 108 Id. 53; 103 Id. 452.

3. The jurisdiction of the county court is not trenched upon nor affected. 96 Ark. 410. The jurisdiction of the county court is not invaded. 92 Ark. 93; 102 Id. 560; 104 Id. 560; Sallee v. Imp. Dist., 138 Ark. 549. Under 96 Ark. 410 and 104 Id. 424 it would be unlawful to lay off a whole county into a road district, but here only portions of a county are affected, and the taxes levied are according to the benefits received by the various tracts. Cases supra.

4. Art. 16, § 1, of the Constitution does not apply to interest-bearing indebtedness of local improvement districts. 115 Ark. 195; 69 Id. 284; 55 Id. 148; 103 Id. 127; 59 Id. 513.

There is a difference in restrictions as to local improvements in cities and towns and the country. 84 Ark. 390; 99 Id. 100.

5. The expression of the legislative will is due process of law. 64 Ark. 555; 87 Id. 8. See also 42 Ark. 152; 167 U.S. 548; 149 Id. 30. See Cooley's Constitutional Lim. 168.

The Legislature can dispense with limitations as to cost, etc. 134 Ark. 30. The Legislature has determined and settled the question that the lands will be benefited. Supra. 118 Ark. 119; 120 Id. 277; 123 Id. 327; 81 Id. 562; 172 U.S. 267; 52 Ark. 107. See also 98 Ark. 116; 167 U.S. 548; 125 Id. 345; 147 Id. 282-6, 302.

The question of depriving the county court of its jurisdiction is settled by Sallee v. Dalton, 138 Ark. 549.

The Legislature has spoken, and its action settles the questions raised by appellants. 102 U.S. 691, 703-4; 96 Id. 97; 11 Id. 701; 125 Id. 345-6, 356; 128 U.S. 582; 140 Id. 316-328; 147 Id. 190, 198-9; 149 Id. 30; 130 Ark. 70. The act does not provide that the taxes levied shall be used for any other purpose than that intended by the act, and the presumption is in favor of its constitutionality. 59 Ark. 513; 72 Id. 513.

J. O. A. Bush and T. D. Crawford, for appellants.

1. The act is void. Act 5, § 26, Const. 1874. This was a special act or local bill, and no notice was given as required by law.

2. One of the roads laid out is more than six miles from plaintiff's lands and across two public roads and inaccessible, and the act is confiscation.

3. It deprives the county court of its constitutional jurisdiction.

4. It practically creates a perpetual commission to improve roads and build bridges, etc. Art. 7, § 28, Const.

5. The district is so extended as to include territory in no wise affected by all the improvements, and is therefore void, and it discriminates in favor of lands in the southern part of the county, and it provides that if any bond or coupon is not promptly paid the holder may apply for a receiver.

6. It is also void because it provides that the existence of prior road districts should be terminated and sections 1 and 3 of the road district shall assume all the expenses of the prior district.

7. It provides that the commissioners shall organize by electing one of their number president, and shall appoint a secretary and treasurer. See on these points 172 U.S. 269; 81 Ark. 562; 89 Id. 513; 98 Id. 543; 122 Id. 294; 129 Id. 546; 131 Id. 64.

The act is arbitrary and discriminatory. 48 Ark. 370; 130 Id. 70.

It is invalid for the provision for appointment of a receiver, and is violative of the "due process of law," act of Congress and United States Constitution. 3 Mackey 142; 74 N.Y. 183; Gray, Lim. Tax. Power 570; Judson, Taxation 343; 134 Ark. 328.

SMITH J. WOOD and HART, JJ., dissent.

OPINION

SMITH, J.

This appeal questions the constitutionality of act No. 130, passed by the 1919 session of the General Assembly, entitled "An act creating Road Improvement District No. 2 in Nevada County." The act is very similar to, and in many respects is identical with, the acts construed by this court in the recent cases of Cumnock v. Alexander, 139 Ark. 153, 213 S.W. 767, and Reitzammer v. Desha Road Improvement Dist., 139 Ark. 168, 213 S.W. 773. Indeed, the counsel for some of those who attack the Nevada County act filed a brief as amici curiae in the former cases and they now refer to that brief on their own appeal, the court below having sustained a demurrer to the complaints in which the validity of the act was attacked. So that it now appears that most of the questions raised by appellants here have been decided adversely to their contention, and we shall here discuss only those questions not already disposed of.

For the purpose of improving certain roads there mentioned the lands to be benefited thereby are divided into five sections or districts. Certain of the plaintiffs who attack the act allege that "the road for which their lands are to be taxed is more than six miles from these lands; that they would be required to cross two public roads to reach this road, which is inaccessible to them; that absolutely no benefit is to accrue to said lands from the building of said roads, and yet these lands are to be charged with the burden of taxation for their construction."

We have here, however, road districts of legislative creation in which there is the direction that certain roads shall be constructed and a legislative determination that certain lands will be benefited thereby, and as was said in the case of Moore v. Board of Directors of Long Prairie Levee District, 98 Ark. 113, 135 S.W. 819, "Nor can the courts review (a legislative determination) merely on general allegations that the assessments are 'arbitrary, excessive and confiscatory.' Facts must be pleaded which show that the decision of the lawmakers was not merely erroneous, but that it was manifestly outside of the range of facts, so as to amount to an arbitrary abuse of power; for nothing short of that will authorize a review by the courts."

We do not think that the allegations of the complaint set out above are sufficient for us to say, as a matter of law, that it would be arbitrary and confiscatory to assess lands six miles distant from the road to be improved. The benefit to be derived might be very slight, but that is a fact yet to be determined and one not now before us. Neither would the fact that there are intervening roads make it arbitrary and confiscatory to assess for the improvement of a road farther removed from the land. We do not know the route, length or termini of these intervening roads; they may be unimproved roads which are passable only at certain seasons of the year.

These are questions of fact which make it impossible for us to say that the Legislature has made a demonstrable mistake. It might be said that it is pointed out in the brief filed on behalf of the commissioners that, when we have taken judicial knowledge of the public surveys, it will affirmatively appear that the lands in question are not six miles from the road to be improved, but a distance of less than three. However, we prefer to place our decision upon the first ground stated.

It is said the act must fall because it deprives the county court of its constitutional jurisdiction over the roads of the county, in that the act gives the court no right to remove commissioners and that the county court is given no control over the expenditure of the road tax collected in any of the townships in which any of the lands of the district shall lie, the tax here referred to being the three-mill tax collected under the authority of the Fifth Amendment to the Constitution. In answer to this objection, it may be said that the plans of the commissioners must first be approved by the county court, as well as any changes therein which may later be proposed. And, while the act does not provide that the county court shall direct the disbursement of the portion of the annual three-mill road tax which may be given to a particular district, it only authorizes the court to turn this money over to a particular district. The same section of the act authorizes the county court "to contribute such funds in money or scrip to the expense of the improvement from the general revenue of their respective counties as...