Nall v. Kelley

• Decision Date: 11 October 1915
• Docket Number: 155
• Parties: NALL v. KELLEY
• Court: Arkansas Supreme Court

179 S.W. 486

120 Ark. 277

NALL v. KELLEY

No. 155

Supreme Court of Arkansas

October 11, 1915

Appeal from Grant Chancery Court; J. P. Henderson, Chancellor affirmed.

Decree affirmed.

Thomas E. Toler, for appellant.

1. That provision of the Act under which the commissioners are attempting to establish and construct the road through the town of Sheridan without first obtaining the consent of the land owners in said town is in direct conflict with the State Constitution, Art. 19, Sec. 27. See also 71 Ark. 556; 59 Ark 116; Kirby's Dig., § 5665.

By section 8 of the Act it is provided that the board of commissioners shall ascertain the cost of the improvement and the plans of the same, and then, if they deem it expedient to make the improvement, they shall appoint three electors to assess the benefits, etc. The assessors had no plans before them, at the time they made the assessments, as appears by the agreed statement of facts. They had no sufficient information upon which to base the assessment of benefits. It is merely shown that they distributed the cost and did not assess according to benefits. 48 Ark. 370; 69 Ark. 76-78; 71 Ark. 21-27; 172 U.S. 269; 72 Ark. 119; 81 U.S. 324; 149 U.S 30; 37 L.Ed. 637; 59 Ark. 513; 96 Ark. 416; 50 Ark. 116; Cooley on Taxation (2 ed.), 638, note 3, 639, 661.

1. One of the commissioners is not the owner of any property within the district outside of the town of Sheridan. This would disqualify that commissioner, in as much as the Act provides that all the commissioners shall be property owners within the district.

3. The assessments are illegal and void because they are not uniform and equal.

The total assessment for the district according to the tax book is seven hundred and fifty thousand dollars, and the assessments of benefits for the whole road is three hundred and twenty thousand dollars,--nearly half of the assessed value of the property. This is unequal and unjust. 64 Ark 555; 70 Ark. 549; 89 Ark. 517.

4. The complaint alleges that the property owners were given no notice of the intention to introduce this special act, nor had they any knowledge of its drastic provisions. This court has held that notice shall be given to owners of land within the district, and failure to give such notice renders the act inoperative. 86 Ark. 231; 36 Ark. 172; 48 Ark. 370.

It alleges further that conditions do not justify the establishment of the road and the benefits purporting to be derived therefrom do not justify the excessive taxation and cost that would be incurred.

"When the assessments of benefits are arbitrary and without any foundation in justice and reason, the court will review the same." 85 Ark. 12; 89 Ark. 513.

5. Under the provisions of the act the commissioners are not required to take the oath and enter into bond for the faithful performance of their duty, which is contrary to the Constitution and against public policy. Art. 19, Sec. 20, Const.; 71 Ark. 17.

In a supplemental brief appellant contends:

6. Section 8 of the act gives to the commissioners the power to form the plan of improvement, and in this respect the act is void, being a plain delegation of legislative authority. The Legislature cannot delegate power to legislate. 33 Ark. 69; 37 Am. Rep. 151, 152; 135 Cal. 466; 67 P. 755; 87 Am. St. Rep. 122; 56 L. R. A. 733.

The words "form" and "create" are synonymous, and to give the commissioners power to form plans of the improvement, gives them power to create a plan of the improvement, and not a power to determine some facts or state of things upon which the law makes its action depend. 59 Minn. 182; 60 N.W. 1095; 63 N.W. 241; 69 Minn. 187.

7. The proposed road runs through the town of Sheridan. The improvement of that part of the road would amount to taking charge of and improving a street of an incorporated town without first obtaining the consent of the property owners within the town, contrary to the Constitution and laws of the State. Art. 19, Sec. 27 Const.; Kirby's Dig., §§ 5664, 5665; 102 Ark. 560.

Coleman & Gantt, for appellees.

1. Appellant's contention that the assessment of benefits in the district is illegal and void for the reason that the assessors were not familiar with the plans and specifications of the improvement before doing their work, is not borne out by the record. The evidence shows that the assessors were fully informed as to the plans and specifications, as well as the cost of the improvement before doing their work. Moreover, the declarations of one of the assessors are not competent evidence to impeach the assessment. 48 Ill. 285; 22 N.E. 816; 130 Ill. 323; 168 Ill. 162; 48 N.E. 38.

2. The contention that one of the commissioners is disqualified because he does not own any property in the district outside of the town of Sheridan is not supported by the proof. He has introduced no evidence to prove this statement.

3. There is no evidence in the record to show that the assessments are illegal and void for the reason that they are not uniform and equal and not imposed equally upon all standing in like relation.

4. Neither is there any evidence to support the allegation that the assessments were made without notice to the land owners. But it has been decided by this court that it has nothing to do with the policy or expediency of legislation of this character so long as such enactments do not violate the Constitution, and that it has no jurisdiction to grant relief upon general allegations that it is drastic, neither wanted nor needed and will be a burden upon the property owners. 112 Ark. 437.

5. The appointment of the commissioners with authority to construct the road if they deem it expedient, is not a delegation of legislative power. This court has held that while the Legislature has no authority to delegate power to make laws, it has authority to delegate power to determine some fact or state of things upon which the law shall depend. Many things upon which wise and useful legislation must depend, cannot be known to the law making power, and must, therefore, be a subject of inquiry and determination outside of the legislative body. 72 Ark. 206; 103 Ark. 452; 104 Ark. 425; 106 Ark. 151; 36 Ark. 69; 1 Ohio St. 77; 90 N.E. 881-888; 129 P. 506-513-514; 50 So. 543; 110 C. C. A. 67, cases cited; 83 A. 1036, 1051; 56 So. 461, 464, 465; 105 Wis. 363; 123 N.W. 961, 964, 965.

6. There is no merit in the contention that the act is void because the road runs through the town of Sheridan, and that the improvement thereof without ascertaining the wishes of the land owners of the town is contrary to the Constitution, etc. There is nothing to show that this is an urban improvement. It is in fact not an urban improvement, although, perforce, it runs through the town in order to avoid a breach of continuity of the road to be improved. Such being the case it is not necessary first to obtain the consent of a majority in value of land owners of the town. 99 Ark. 100; 97 Ark. 322; Cox v. Road Improvement District, 118 Ark. 119.

Art. 19, section 27 of the Constitution is applicable solely to local improvements in cities and towns. That part of the road extending through the town does not partake of the nature of a local improvement. 118 Ark. 119; 99 Ark. 100; 90 N.E. 881, 888.

7. There is nothing in the Constitution that requires commissioners of improvement districts to take an oath of office. The Legislature in the enactment of such laws may dispense with that requirement if it sees fit. 71 Ark. 17, 25.

OPINION

MCCULLOCH, C. J.

The Legislature at the 1915 session enacted a special statute creating a road improvement district in Grant County (Act 48, p. 136, Acts 1915), embracing a considerable portion of lands of that county and authorizing the board of commissioners to improve a certain public road known as the Pine Bluff, Sheridan and Hot Springs road. That road runs clear across the county and passes through the incorporated town of Sheridan. The statute provides a complete scheme for the organization of the district, the formation of plans for the improvement, the assessment of benefits, and for the construction of the improvement and enforcement of payment of the improvement tax.

It appears from the allegations of the complaint in this action that the board of improvement has effected an organization in accordance with the terms of the statutes and are attempting to carry out the provisions of the statute. This is an action instituted by a property owner in the district to enjoin the board from proceeding with the construction of the improvement, the levying of assessments and the issuance of bonds. The cause was heard upon an agreed statement of facts and the depositions of witnesses, and the chancellor, on a hearing of the cause, dismissed the complaint for want of equity.

The complaint in the case seems to have been framed so as to constitute an assault upon the validity of the whole statute, section by section, and all of the proceedings of the board, but we must treat as abandoned all of the assaults except the ones that are made in the briefs of counsel filed in this court.

In the first place it is contended that the act is void because it includes property in an incorporated town without obtaining the consent of the majority in value of the property owners. This contention may be disposed of by merely citing several of our decisions where we held that the provision of the Constitution with reference to improvement districts entirely inside of cities and towns has no application to districts covering territory not wholly within the city limits of a municipality. Butler v. Board of Directors of Fourche Drainage District, 99 Ark. 100, 137 S.W. 251; Alexander v. Board of Directors of Crawford County Levee District, ...