Meek v. Christian

• Decision Date: 23 March 1925
• Docket Number: 255
• Citation: 270 S.W. 614,168 Ark. 313
• Parties: MEEK v. CHRISTIAN
• Court: Arkansas Supreme Court

270 S.W. 614

168 Ark. 313

MEEK v. CHRISTIAN

No. 255

Supreme Court of Arkansas

March 23, 1925

Appeal from Miller Chancery Court; C. E. Johnson, Chancellor modified.

STATEMENT OF FACTS.

Appellants prosecute this appeal to reverse a decree in favor of appellee, C. S. Christian, for services performed in surveying and making the plans, specifications and estimate of cost for a special road improvement district in Miller County, Arkansas.

The General Assembly of the State of Arkansas, at its special session in 1920, passed act No. 51 to create the South Miller County Highway District, and the act was approved February 4 1920. The territory embraced in the act comprised the whole of the south half of Miller County, Arkansas, including the city of Texarkana and a part of the territory embraced within the boundaries of Miller County Highway and Bridge District. The roads which it is proposed to improve are described in a general way in § 1 of the act.

Section 2 provides that if any of the roads proposed to be improved have not been laid out as public roads, it is made the duty of the county court to lay out the same in accordance with our general statute relating to the establishment and change of public roads in this State.

Section 3 provides that the commissioners may employ such engineers attorneys and agents as they find advantageous, and fix their compensation.

Section 4 makes it the duty of the commissioners to proceed as rapidly as possible with the proposed improvement, which is to improve the roads named in the act by grading and draining them and surfacing them with gravel. The section also provides that the commissioners shall form their plans for the proposed improvement, and shall file the same with the county clerk of Miller County with the specifications and an estimate of the cost. This section also gives the commissioners the power to vary the line of existing public roads for the purpose of straightening them or for economy in the construction of the improvement. It is made their duty to report their recommendations in this respect to the county court, and it is made the duty of the county court to approve the change in the route and to lay out the new roads, if it approves the report of the commissioners.

Section 5 provides that all real property subject to taxation within the corporate limits of the city of Texarkana and all that portion of the proposed district which lies within the boundaries of the Miller County Highway & Bridge District will be benefited by the improvement to the extent of 10 per cent. of the assessed value of each parcel of said real property as assessed for State and county taxes for the year 1919.

The section further provides that it is ascertained and declared that all land within the district will be benefited at least to the extent of the cost of the proposed improvement, and that the amount of benefits to each tract of land outside of the corporate limits of the city of Texarkana and outside of that portion of the district lying within the boundaries of Miller County Highway and Bridge District will be ascertained by an assessment of benefits to be made by a board of assessors to be appointed under the act.

Pursuant to this act, the commissioners employed C. S. Christian to make a survey of the roads proposed to be improved and to prepare plans and specifications and the estimated cost of improving the same, and on the 9th day of March, 1920 entered into a written contract whereby they agreed to pay him 4 per cent. of the estimated Cost of the proposed improvement for his services. The contract provides that he shall make all preliminary and final plans and supervise all the construction work. The contract provides in detail for the services of the engineer with regard to the preparation of the plans, specifications and estimate of cost of improving the roads under the act: C. S. Christian entered into the prosecution of his work, and caused a survey of the roads proposed to be improved to be made, and prepared and filed under the provisions of the act plans, specifications and an estimate of the cost thereof. His report is in detail, and shows that the total length of the roads to be improved is 113.214 miles; and that the total cost, including overhead expenses, is estimated to be $ 1,511,900.97.

The commissioners approved the report of the engineer, and on January 21, 1921, issued certificates to said engineer in the total sum of $ 27,489.10. The certificates bear interest at the rate of 6 per cent. per annum from date until paid. Opposition developed among the landowners to the construction of the proposed improvement, and the county court refused to approve the plans and specifications with the estimate of cost of improving said roads, and also refused to approve the changes in the roads suggested by the commissioners. In fact, the county court disapproved the act of the commissioners in entering upon the construction of the proposed improved roads. On the 26th day of September, 1922, thereafter, the commissioners passed a resolution in which they stated the advantages to be derived from the proposed improved roads, and called attention to the objections made to the Construction of the same. A resolution was adopted by the board of commissioners that, under existing conditions, it would be to the best interest of the landowners for the affairs of the district to be wound up without constructing the proposed improved roads, and provisions for the payment of its outstanding obligations be made.

On the 4th day of October, 1922, the commissioners filed a petition in the chancery court for the purpose of winding up the affairs of the district, and calling upon all claimants to file their claims. On the 16th day of October, 1922, Oscar Meek and other landowners in the district were allowed to become parties to the proceeding.

C. S. Christian sold and assigned the certificates of indebtedness issued to him. On the first day of February, 1922, the First National Company of St. Louis, Mo., purchased said certificates from C. M. Conway for the sum of $ 28,161.66. On January 20, 1923, the said First National Company filed its claim against said district in the chancery court, asking that it be allowed the sum of $ 27,489.10, the face of the certificates, and interest thereon at the rate of 6 per cent. per annum from the date of issuance, to-wit, January 21, 1921, until paid.

On February 9, 1923, an act repealing the act creating South Miller County Highway District was approved. Special Acts of 1923, p. 126.

Evidence was introduced by the First National Company of St. Louis, Mo., to establish the validity of its claim, and the taxpayers introduced evidence tending to show that no recovery should be allowed on the certificates, and that the claim should only be allowed Upon a quantum meruit.

The testimony on both sides on this branch of the case will be set out and reviewed in the opinion. In this connection it may be stated, however, that three assessors were appointed as directed by the act to make an assessment of benefits, but it does not appear from the record that they ever made or filed any assessment of benefits under the provisions of the act.

The chancellor made a finding that there was not sufficient evidence to impeach the justice of the allowance of $ 27,489.10 made by the board of commissioners to C. S. Christian. It was therefore decreed that the First National Company of St. Louis, Mo., the holder of the certificates, be given judgment against the district for the face value thereof, with 6 per cent. interest per annum from January 21, 1921, until paid. The case is here on appeal.

Decree affirmed. Petition overruled.

Jas. D. Shaver, John. N. Cook and W. H. Arnold, Jr., for appellants.

Henry Moore, Jr., Webber & Webber, Chauncey H. Clark, Rose, Hemingway, Cantrell & Loughborough, James D. Head and Paul Jones, for appellees.

HART,J. HART, J., on rehearing. WOOD, J., dissents.

OPINION

HART, J., (after stating the facts).

It is first sought to uphold the decree of the chancery court on the ground that the holders of the certificates issued to C S. Christian were entitled to recover the face value thereof and the accrued interest. It is claimed that there was a legislative assessment of benefits, and that, in making the same, the lawmakers are presumed to have had before them information as to the cost of the construction of the proposed roads according to the plans and specifications within the rule announced in Summers v. Cole, 144 Ark. 494, 223 S.W. 721, and other decisions of this court. Therefore it is claimed that the case is brought within the principles decided in Bowman Engineering Co. v. Ark. & Mo. High. Dist., 151 Ark. 47, 235 S.W. 399. We do not agree with counsel in this contention. We have given a synopsis of the provisions of the special act creating the road improvement district, so far as is necessary to determine the issues raised by this appeal. It is true that the Legislature declared that all the land within the proposed district would be benefited at least to the extent of the cost of the improvement. Conceding that the Legislature is presumed to have had before it information as to the cost of the construction of the proposed improvement, still it could not know that the land in the district would be benefited at least to the extent of this cost without making a legislative assessment of benefits. In other words, even if it should be presumed that the Legislature knew the cost of the proposed improvement, it could not know the extent or amount of the benefits to the land within the district without making an assessment thereof. Its action in declaring the benefits are equal to the costs of the improvement, without...