McKee v. English

• Decision Date: 21 February 1921
• Docket Number: 180
• Citation: 228 S.W. 43,147 Ark. 449
• Parties: MCKEE v. ENGLISH
• Court: Arkansas Supreme Court

228 S.W. 43

147 Ark. 449

MCKEE v. ENGLISH

No. 180

Supreme Court of Arkansas

February 21, 1921

Appeal from Washington Chancery Court; B. F. McMahan, Chancellor affirmed.

Decree affirmed.

E. P Watson, for appellants.

1. Act 529, Acts 1919, named three persons as commissioners for each of the three districts. The curative act did not amend this act by declaring that three commissioners should constitute the board in the future of district No. 3. The court erred in holding the curative act constitutional and the organization of district No. 3 valid.

2. The contracts for building the roads in district No. 3 were illegally entered into by this pretended board of commissioners. No legal notice was given, and all advertisements for bids were without authority of law. Full thirty days' notice is required, and time is essential in such matters. Page & Jones on Assessments, § 777-821 act 527, Acts 1919, p. 2048, § 9.

3. The district is laid off without regard to benefits to a large portion of the district. It is arbitrary and unjust. The act is unconstitutional, arbitrary and unjust.

4. Section 7 of this amendatory act expressly repeals sections 6, 8 and 27 of the original act No. 529. Black on Construction of Laws, §§ 130-1. If an act be passed subsequent to the amendatory act repealing the original act the amendment incorporated in the original act is repealed. 21 Mo.App. 587; 73 Mo. 88; 22 Tex. 588; 90 Mo.St. 627; 36 Ill. 162. By repealing sections 6 and 8 of the original act the heart of it was cut out, and the entire act became inoperative.

5. But, if not repealed, sections 6, 8 and 27 are in full force, and the assessments are invalid, as property required to be assessed was left off the assessment rolls and the assessments are discriminatory and void. Page & Jones on Assessments, §§ 880-4; Ib., §§ 639 to 645.

6. Under the original act creating district No. 3, the assessors were not limited as to the amount of benefits; the amendatory act, § 8, limits the assessment to 30 per cent. of the assessed value, and it is a legislative determination of benefits. Page & Jones on Assessments, §§ 668 and 728, p. 1263. See, also, § 777. A failure to object to an assessment which is void is not a waiver of such defense. Page & Jones, § 918; 34 P. 691. The statute is void, and the assessments exceed the maximum limit provided by statute and laying out the road is arbitrary and void.

Hill & Fitzhugh, for appellees.

1. The act provides for only three commissioners. Even if nine commissioners had been appointed by the original act, and the district had acted through three commissioners, their acts would be validated by the act February 23, 1920, which ratifies and confirms all acts, proceedings and contracts of the commissioners. Section 5, act February 23, 1920; 134 Ark. 30.

2. More than thirty days' notice was given of the letting of the contracts, and all irregularities were cured by the amendatory act. 134 Ark. 30.

3. The roads were not laid off in an arbitrary manner. Authorities need not be cited as they are numerous.

4. There was no unconstitutional interference with the jurisdiction of the county court. Both the original and amended acts fully recognize the jurisdiction of the county court. 130 Ark. 507; 125 Id. 375; 137 Id. 362.

5. The amended act does not repeal itself.

6. Failure to assess telephone and telegraph lines in the district does not render void the assessment on the balance of the property. The presumption is that the assessors did their duty, and the burden of proof was on appellants and they have failed to meet it, and (2) the presumption is that if these companies owned any real property that the same would have been assessed if they were benefited. 83 N.W. 183; 1 Page & Jones on Assessments, § 593.

7. Benefits in excess of 30 per cent. have not been levied as the proof shows.

8. All prior defects and irregularities were cured by the amendatory act of February 23, 1920.

9. Plaintiffs are barred by limitation, as the suit was not brought until after the twenty days' limit had expired.

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

OPINION

MCCULLOCH, C. J.

Appellant owns real estate situate within the boundaries of Road Improvement District No. 3 of Washington County, an improvement district which was created by special act of the General Assembly of 1919, at the regular session (Vol. 2, Road Acts, 1919, p. 2034), and they instituted this action against the board of commissioners of said district attacking the validity of the statute, as well as certain proceedings of the board of commissioners.

The statute in question created three separate and distinct road improvement districts in Washington County numbered, respectively, 3, 4 and 5, and named three commissioners for each district, described the separate improvements to be constructed in each district and authorized the construction of the same and the assessment of benefits and levy of assessments, issuance of bonds, etc.

It was competent for the Legislature to adopt this form of creating by one statute numerous separate and distinct districts. Cumnock v. Alexander, 139 Ark. 153, 213 S.W. 767; White v. Ark. & Mo. Highway Dist., ante p. 160. This statute does not in express terms declare that each of the districts shall be separate and distinct, but such is the necessary effect of the language used in conferring authority on the commissioners to proceed with the construction of the improvements.

There was an amendatory statute enacted at the extraordinary session of the General Assembly in February, 1920 (unpublished act No. 529), which attempted to cure irregularities in the proceedings and also amended sections six, eight and twenty-seven in the original statute. The form adopted was to rewrite those sections anew, and the old sections were repealed. It is contended that the amendatory statute repealed itself as well as the three sections mentioned in the original statute. The statement of the argument affords the best answer, for we can not assume that the lawmakers intended to do the absurd thing of expressly re-enacting certain sections with the intention at the same time to repeal them. What was clearly meant was to repeal the old sections as originally written and to substitute the new sections as rewritten.

It is also contended that the amendatory statute is void for the reason that such legislation was not embraced within the call of the Governor in convening the General Assembly in extraordinary session. If it be conceded that we are at liberty to go behind the action of the Legislature for the purpose of determining whether or not the statute in question fell within the scope of the call of the Executive, we find by examination of the Governor's proclamation that it was sufficiently broad in its language to cover this statute. The purposes of the call, among other things, was for "ratifying, confirming and validating special or local improvement districts, organized under general laws or special or local laws, and enlarging the powers thereof."

It is next contended that the statute is void because the authority to construct the improvement constituted an invasion of the jurisdiction of the county court. Section 6 of the section as amended contained the following provision: "Subject only to the general supervision and control of the county court of Washington County, Arkansas, as provided by the Constitution of said State, said boards of commissioners shall have exclusive jurisdiction over the construction and maintenance of the improvement herein provided for."

We think that the language of this particular statute constitutes much stronger recognition of the jurisdiction of the county court and affords less ground for holding that it is an invasion of the jurisdiction of that court than does the statute under consideration in other cases where we held that there was no such invasion. Sallee v. Dalton, 138 Ark. 549, 213 S.W. 762; Cumnock v. Alexander, supra; Reitzammer v. Desha Road Imp. Dist., 139 Ark. 168, 213 S.W. 773; Hamby v. Pittman, 139 Ark. 341; Bush v. Delta Road Imp. Dist., 141 Ark. 247, 216 S.W. 690.

This statute declares in express terms that the authority of the commissioners over the construction and maintenance of the improvements shall be subject to the jurisdiction of the county court. That is to say, that the county court shall have the supervision and control of the action of the commissioners. We can scarcely see how the authority of the county court could be more emphatically expressed.

The proceedings of the board of commissioners are attacked in several particulars, some of which are barred by the period of limitation provided in the statute for bringing suit to invalidate the assessment of benefits. It is contended that the assessments are invalid because of the failure to assess telephone lines in the district. It is not alleged in the complaint that the telephone companies owned property in the district subject to assessment. There is an allegation that there are telephone lines in the district, but it does not allege that they constitute property of the character which is subject to assessment. However, this is a matter of which appellants are barred by the failure to bring an action within the time expressed in the statute.

There is also an attack on the validity of the assessments on the ground that they exceed the maximum limit provided in the statute. The statute provides that the "entire assessments levied upon the property of the districts for the construction and completion of the improvements herein provided for shall not exceed 30 per cent. of the assessed valuation of the real property within the districts according to last assessment for taxation, exclusive of interest on...