McCord v. Welch

• Decision Date: 14 February 1921
• Docket Number: 161
• Citation: 227 S.W. 765,147 Ark. 362
• Parties: MCCORD v. WELCH ROAD IMPROVEMENT DISTRICT NO. 6 v. ROAD IMPROVEMENT DISTRICT NO. 8
• Court: Arkansas Supreme Court

227 S.W. 765

147 Ark. 362

MCCORD v. WELCH

ROAD IMPROVEMENT DISTRICT NO. 6 v. ROAD IMPROVEMENT DISTRICT NO. 8

No. 161

Supreme Court of Arkansas

February 14, 1921

Appeals from Little River Chancery Court; Jas. D. Shaver Chancellor; McCord v. Welch reversed; District No. 6 v District No. 8 affirmed.

Decree reversed in part and cause remanded, affirmed in part.

A. D Dulaney and John J. Dulaney, for appellants.

1. The chancery court erred in granting the injunction to McCord, county judge, because (1) the complaint shows that court is without jurisdiction of the subject-matter. 91 Ark. 534; 7 R. C. L. 1030. (2) The county court has exclusive original jurisdiction over matters relating to county roads with which a chancery court has no power to interfere. Article 7, § 28, Const.; 98 Ark. 64. (3) The county court is a constitutional superior court of record, while chancery courts are created by the Legislature with limited jurisdiction. Article 7, § 1, and Ib., § 15. Equity has no power to restrain another superior court of record from proceeding to exercise its conceded authority in a regular, lawful manner. 95 Ark. 621. The proceedings of a court without jurisdiction are a nullity. 7 R. C. L. 1033. See, also, 54 Ark. 118; 106 Id. 508; 109 Id. 250. (4) Neither the act 338 of 1915, nor the validating act, No. 369 of 1920, conferred jurisdiction upon the chancery court to act upon the road matters involved. 22 Cyc. 879; 69 Ark. 376.

2. The chancery court erred in overruling the demurrer of the commissioners of district No. 6 and in granting the injunction against them, because (1) the commissioners were proceeding lawfully under authority of act No. 338, Acts 1915, and the special act 369 of 1920. There is no allegation in appellee's petition that the commissioners were acting unlawfully, capriciously, or were abusing their power or discretion. 84 Ark. 29.

A statute validly enacted can not be repealed by the courts. Act 369 is valid and the Legislature had power to enact it. 216 S.W. 692. Validating the formation of district No. 6 made a legislative determination that appellee's lands were benefited by the proposed road and was an exercise of legislative power which the chancery court could not set aside and could not take said added lands of appellee's out of district No. 6, in the absence of a showing of excessive, unreasonable and exorbitant assessment of benefits. 216 S.W. 692; 218 Id. 386.

In defining the boundaries of a road improvement district the Legislature necessarily made a determination as to what lands will and will not be benefited, and it is only in case of demonstrable mistake that the court will declare a statute void. 217 S.W. 260. A legislative determination of benefits has repeatedly been upheld. 215 S.W. 882; 213 Id. 767, 773; 133 Ark. 118. Reviewing courts should not substitute their judgments for that of assessors and commissioners unless the evidence clearly shows that the assessment and proceedings are erroneous. 213 S.W. 749; 137 Ark. 573.

In their petition appellees allege that special act 369 was passed without their knowledge or consent and invalidates the act, but the notice required by the Constitution must be presumed to have been given. 216 S.W. 500; 218 Id. 386; 220 Id. 57; 221 Id. 465.

3. A party seeking to enjoin a strictly legal proceeding must first submit to judgment and then proceed to enjoin the enforcement of the judgment. Appellees should have permitted the assessments to be passed on and then, in case of unfair treatment, applied to chancery for injunction. 31 Ark. 373; 21 Id. 197; 220 S.W. 38.

4. Appellees allege no facts show comparable injury or that a multiplicity of suits would follow.

5. Appellees had an adequate remedy at law. 106 Ark. 552; 92 Id. 118; 10 R. C. L. 273; 29 Ark. 340; 223 S.W. 400.

6. Section 27, act 681 of 1919, is unconstitutional and void. 218 S.W. 384; 213 Id. 762, 768. Such extensive powers can not be exercised. 118 Ark. 119; 89 Id. 513; 91 Id. 274. Section 27 is too vague and uncertain and is invalid. 220 S.W. 311; 215 S.W. 255.

Commissioners can not so alter the boundaries of the district, routes of the roads, etc., so as to destroy the singleness or original plan of the improvement; if so, the statute is invalid. 219 S.W. 23; 213 Id. 374; 137 Ark. 355. The cost of the improvement can not exceed the benefits. 133 Ark. 491; 135 Id. 102.

7. Section 27, act 681 of 1919, was repealed by implication by special act No. 369 of 1920. 218 S.W. 179; 123 Ark. 184; 120 Id. 530.

8. If section 27 is valid it does not apply because appellant district No. 6 has issued bonds.

9. If injunction is not granted appellant will suffer irreparable injury and no adequate remedy at law is available to appellant. 34 Ark. 356.

Reynolds & Steel, for appeellees.

1. The court was correct in overruling the demurrers and granting the injunction because the complaint on its face states no cause of action. Clearly appellees have shown a cause of action against both the county court and the commissioners, and have alleged that a multiplicity of suits would result if the injunction should not be granted. The law has been complied with and no bonds have been issued. Kirby's Digest, § 3965-6-81; 59 Ark. 344; 222 S.W. 59. Since no bonds had been issued in district 6, a levy would be illegal and injunction would lie. 30 Ark. 101-110; 32 Id. 527.

2. The petition alleges that a petition in compliance with law has been filed with the commissioners of district No. 8 asking for the transfer of the territory to No. 8.

3. The demurrers admit, so far as this suit is concerned, that every statement in the petition is true.

4. Section 27, act 681, Acts 1919, p. 2721, is valid and has not been repealed by act 369 of 1920. Section 27 is valid (109 Ark. 28; 73 Ark. 536), as it has not been expressly repealed, nor by implication, as the acts are not repugnant. 109 Ark. 28; 50 Id. 132; 72 Id. 119; 93 Id. 621; 112 Id. 102; 88 Id. 327; 36 Cyc. 1077, etc. A general act is not usually intended to repeal a special act. 2 Ark. 119; 50 Id. 132.

5. In the event the act of 1920 is valid, it and section 27, Acts of 1919, are "in pari materia," and section 27 is valid. 4 Words and Phrases 3478; 101 Ark. 238; 76 Id. 443; 82 Id. 302; 80 Id. 411; 36 Cyc. 1077-90.

6. The chancery court clearly had jurisdiction and the citations of appellant are not applicable. 222 S.W. 59. A cause of action is stated. 223 S.W. 368.

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

OPINION

MCCULLOCH, C. J.

These two cases, both involving controversies between two road improvement districts in Little River County and between one of the districts and the owners of certain real property, can be disposed of in one opinion.

Road Improvement District No. 6 is an appellant in each of the cases and was organized under the general statutes of the State authorizing the creation of such districts for the construction of rural highways under orders of the county court (Crawford & Moses' Digest, § 5399 et seq., act March 30, 1915, page 1400), and was organized by order of the county court of Little River County on May 14, 1918, to improve a public road running north from Ashdown by way of Wilton to Mills Ferry on Little River.

The General Assembly of 1919, at the regular session enacted a special statute, approved April 3, 1919 (Vol. 2, Road Acts, page 2707), creating Road Improvement District No. 8 of Little River County for the purpose of improving a certain public road running northeasterly from Ashdown. This statute is in the customary form for the creation of road districts by special statute, and it names the commissioners, describes the boundaries of the district, and authorizes the assessment of benefits for the construction of the described improvement.

Section 27 of that statute reads as follows:

"In case a majority in numbers of landowners, a majority in acreage, or a majority in value, of the landowners in territory adjacent to the district created by this act desire that any such adjacent territory be annexed to and become a part of the district hereby created, they may file their petition with the commissioners of the district, who shall thereupon give notice of such filing by publication for two weeks in some newspaper published and having a general circulation in Little River County fixing a date when all persons will be heard at the circuit court room in the town of Ashdown; and on said date the said commissioners shall assemble and hear all persons who desire to be heard in support of or against said petition, and if the board finds that a majority in acreage, in numbers or in assessed value has petitioned for annexation, it shall enter upon its records an order which shall have all the force of a judgment, annexing such territory to this district; and from that time forward such territory shall be treated in all respects as a part of the district created by this act; and in case said territory is located in any other road improvement district which has not issued bonds, the said territory shall cease to form a part of said other district, but for road purposes shall be exclusively a part of the district created by this act."

Certain tracts of real estate owned severally by Welch and other appellees in the first case mentioned in the caption of this opinion are situated in the angle formed by the two highways to be improved by the two districts mentioned, as those highways converge toward Ashdown, but the lands were not situated in either of the districts at the time they were organized. The General Assembly at the extraordinary session in February, 1920, enacted a special statute incorporating those lands into Road Improvement District No. 6 and authorizing the assessment of betterments...