Neterer v. Dickinson & Watkins

• Decision Date: 03 April 1922
• Docket Number: 270
• Parties: NETERER v. DICKINSON & WATKINS
• Court: Arkansas Supreme Court

239 S.W. 722

153 Ark. 5

NETERER v. DICKINSON & WATKINS

No. 270

Supreme Court of Arkansas

April 3, 1922

Appeal from Lawrence Chancery Court, Eastern District; Lyman F Reeder, Chancellor; reversed in part.

Decree reversed and remanded in part and affirmed in part.

W A. Cunningham, for appellant.

The act creating the district was void because the boundaries were arbitrarily formed, without regard to any benefits to be derived. 130 Ark. 170; 139 Ark. 574; 145 Ark. 49. Hence no liability could be based upon its attempted formation.

The assessment of betterments and the attempted confirmation bye the Legislature is void because arbitrary and confiscatory. 48 Ark. 370.

Section 30 of the special act providing for the payment of preliminary expenses upon an ad valorem basis is unconstitutional and void. The only basis for such an assessment is the benefit derived, or which would have been derived had the improvement been made. 50 Ark. 129; 89 Ark 573; 96 Ark. 416; 98 Ark. 549; 118 Ark. 303. If, however, an assessment for preliminary expenses is authorized, the statute must be strictly construed (59 Ark. 356; 71 Ark. 561; 79 Ark. 521); and the basis adopted by the court was wrong.

A S. Irby, for appellee.

The district was in all respects valid, and so held in 143 Ark. 270.

A legislative determination of the boundaries of a district will not be overturned unless shown to be arbitrary and unreasonable (147 Ark. 449; 147 Ark. 312; 139 Ark. 524), and may even include lands which had therefore been excluded by the county court on the ground that they received no benefits. 216 S.W. 1047; 217 S.W. 258; 130 Ark. 70; 139 S.W. 574.

The action of the court in making the levy on the assessment of benefits which had been confirmed, rather than on the ad valorem basis contended for by appellant, was correct. 143 Ark. 270; 113 Ark. 364; 107 Ark. 285; 166 S.W. 170; 112 Ark. 357; 83 Ark. 54; 97 Ark. 322; 86 Ark. 1.

The assessment of benefits is not now subject to attack. 143 Ark. 270; 145 Ark. 382. The district was not rendered invalid by the exclusion of certain lands said to be benefited, as these lands can still be made to bear their proportion of the tax. 215 S.W. 882.

OPINION

MCCULLOCH, C. J.

The Walnut Ridge-Alicia Road Improvement District in Lawrence County was created by a special statute enacted by the General Assembly. Road Act No. 43, regular session, 1919. The statute authorized the improvement of a public road running between Walnut Ridge and Alicia, and authorized the appraisal and taxation of the benefits for the purpose of paying the cost of the improvement. The section of the statute pertinent to the controversy now before us reads as follows:

"Section 30. If, for any reason, the improvement herein authorized and directed shall not be made, all expenses and costs accrued to that time shall be charged against the real property of the district, and the amount necessary to discharge all such indebtedness shall be levied by the chancery court of Lawrence County upon real property in proportion to the county assessment, and collected by a receiver to be appointed by said court."

There was an assessment of benefits by the assessors of the district appointed in accordance with the provisions of the statute, and subsequently another special statute was enacted approving those assessments. Unpublished statute, approved Feb. 4, 1920.

The last statute just referred to also made slight changes in the boundaries of the district.

The validity of the statute confirming the assessment of benefits was upheld by this court in the case of Gibson v Spikes, 143 Ark. 270, 220 S.W. 56. Later there was an abandonment of the whole project, it being ascertained that the cost of the improvement would be so much, in comparison with the benefits to be derived, that it was impracticable to attempt to make the improvement.

In an action instituted by certain owners of property in the district against the board of commissioners in the Federal court of this district, there was a decree enjoining further proceedings toward the improvement of the road, but the decree contained a recital that it was "without prejudice to the right of the chancery court of Lawrence County to proceed to pay the debts of said Walnut Ridge-Alicia Road Improvement District as provided in section 30 of the act whereby said district is created, and to enforce collection of said taxes in the manner herein provided."

Thereupon appellees, who had performed services in the preliminary work, instituted the present action in the chancery court of Lawrence County (Eastern District) against the improvement district and the commissioners thereof, in which it was sought to establish the claims of the creditors of the district and to enforce the collection thereof in accordance with the terms of the section of the statute quoted above. Appellants are owners of lands in the district, and they intervened in the action to contest the claims against the district.

Appellants attack the validity of the district on the ground that certain tracts of land which would have been benefited were omitted from the district and thus exempted from taxation. There is also an attack on the assessment of benefits made by the assessors, and confirmed by the Legislature, as being arbitrary, discriminatory and confiscatory. There was also an attack on section 30 of the original statute on the ground that it authorizes the collection of an ad valorem tax instead of a tax on benefits.

The court made a finding as to the correctness of the claims against the district and decreed payment thereof out of funds to be raised by taxation of benefits according to the assessments made by the assessors and confirmed by the Legislature.

There is no question raised as to the correctness of the claims of appellees as creditors of the district. It is therefore unnecessary to state those claims in detail or to refer to the amounts allowed to the respective creditors for services performed.

The attack on the validity of the statute creating the district is based upon the omission of certain lands. It is claimed that a portion of the SE 1/4 of sec. 27, twp. 17 N, range 1 E, which was contiguous to the northern end of the road to be improved in the corporate limits of Walnut Ridge, and which is excluded from the boundaries of the district, lies in between the NW 1/4 of said section and the end of the road, and that the only way of approach from the latter tract is completely around the former tract, along the road that crosses the bridge at the end of the road to be improved.

According to the plats exhibited, there is a creek near the city limits of Walnut Ridge, which forms the boundary of the road district at that point. There is a conflict in the testimony as to where the bridge is situated, there being testimony that the bridge which constitutes the end of the road to be improved lies in section 34, which is south of section 27. If this is true, the excluded portion of section 27 does not in any sense intervene between the portion of section 27 which...