Nettles v. Hazelwood Road Improvement District No. 2 of Greene County

• Court: Arkansas Supreme Court
• Writing for the Court: MCCULLOCH, C. J.
• Citation: Nettles v. Hazelwood Road Improvement District No. 2 of Greene County, 223 S.W. 397, 144 Ark. 632 (Ark. 1920)
• Decision Date: 05 July 1920
• Docket Number: 95
• Parties: NETTLES v. HAZELWOOD ROAD IMPROVEMENT DISTRICT NO. 2 OF GREENE COUNTY

223 S.W. 397

144 Ark. 632

NETTLES v. HAZELWOOD ROAD IMPROVEMENT DISTRICT NO. 2 OF GREENE COUNTY

No. 95

Supreme Court of Arkansas

July 5, 1920

Appeal from Greene Chancery Court; Archer Wheatley, Chancellor affirmed.

Affirmed.

W. W Bandy and Geo. A. Burr, for appellants.

The special act, No. 126, Acts 1919, is void, and all acts done and performed under said act and threatened and about to be done are illegal, null and void, because--

1. It takes away the jurisdiction of the county court. Art. 7 § 28, Const. 1874.

2. It is a legislative invasion and usurpation of the judicial power forbidden by § 1, art. 14, Const. 1874.

3. The act was never read at length on three separate days, as required by § 22, art. 5, Const. 1874.

4. It is confiscatory and violates §§ 21 and 22, art. 2, Const. 1874, and arts. 5 and 14, amendments to the Constitution of the United States, because there is no limitation upon the power of the commissioners to reassess benefits or betterments.

5. It violates § 25, art. 5, of our State Constitution, as it is a special law applicable to public improvements which are provided for by a general law, and, further, the county court has full and complete jurisdiction under our general laws to grant all necessary powers and privileges and relief under said special act.

6. It is a special act and a local one and no published notice was published as required by law. Art. 5, § 26, Constitution 1874.

7. The assessments are excessive and confiscatory and the act takes property, without proper compensation, for public use, in violation of arts. 5 and 14 of the State Constitution and amendment to Constitution United States.

8. The assessments and taxes are illegal, null and void, because all the lands in the Hazelton road district are not correctly described in the published notice.

9. They are void because the report of the assessors was not filed with the chairman of the board of commissioners at the time the published notice of the filing of such report was first printed and distributed.

10. Certain of the commissioners were not land owners of the Hazelton district, nor are all of said commissioners residents of the improvement district. See 212 S.W. 333; 83 Ark. 54; Hicks v. Knight, 142 Ark. 286.

The appellee, pro se.

1. The act does not violate our Constitution, either State or United States, and all the contentions of appellant have been passed on by this court. 92 Ark. 93; 130 Id. 507, 513; 89 Id. 513; 102 Id. 560.

2. The act is not confiscatory. 130 Ark. 410. See, also, 213 S.W. 767; 214 S.W. 23; 86 Ark. 1; 83 Id. 54; 181 U.S. 371; 103 Ark. 127; 52 Ark. 107; 113 Id. 195; 85 Id. 12; 83 Id. 344; Ib. 54; 81 Id. 562; 113 Id. 363-370. Acts 1920 validates and confirms all that was done under the original act.

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

OPINION

MCCULLOCH, C. J.

This case involves an attack on the validity of a road improvement district in Greene County created by a special statute (Act No. 126, regular session of 1919) and the proceedings of the board of commissioners and assessors under authority of that statute. The statute in question creating the road improvement district describes the boundaries and the roads to be improved and names the commissioners. The roads to be improved are described as public roads and the route is mentioned in detail. It contains authority for the improvement and for assessment of benefits and the borrowing of money.

Section 10 of the statute provides, in substance, that when the assessors are appointed by the board of commissioners, they shall make an assessment of benefits and file the lists with the chairman of the board of commissioners, and said chairman shall give twenty days' notice in a weekly newspaper of a public hearing as to the correctness of the assessments, and that the assessors shall meet at the time and place mentioned in the notice for the purpose of hearing complaints of landowners, and that any errors or wrongful assessments will be adjusted on petition of landowners who are aggrieved by the assessments. It provides further that any landowner "aggrieved by the action of the board of assessors fixing the assessment, as herein provided, shall have the right for twenty days from the date of adjournment of said board of assessors sitting as a board of equalization as aforesaid to appeal from their decision to any court of competent jurisdiction to set aside said assessment list or to correct any void or erroneous assessment thereon; but after the expiration of the said twenty days the said list shall become final and incontestable either at law or in equity."

It appears from the allegations of the complaint that the assessments have been made by the board of assessors, and it is alleged in the complaint that the assessments are confiscatory by reason of the fact that the lands in the district are situated in numerous other improvement districts, that many of the farms are under mortgage, and that the interest on the mortgages and the assessments levied on these lands for various improvements, including this one, together with taxes, State and county, school and other local taxes, will amount to more than the income derived from the lands. It is also alleged in the complaint that a portion of the road to be improved is "covered with water, varying in depth from a few inches to ten or more feet," and that the condition just described prevents the construction of the improvement. It is also alleged that a certain drainage district which would drain this area has been declared to be illegal and void, and that this frustrates the scheme to improve the roads by reason of the fact that the improvement in this district was intended to drain these particular lands. The chancery court sustained a demurrer to the complaint, and an appeal has been prosecuted to this court.

Several of the points of attack have been definitely settled by previous decisions of this court. The contention that the authority to maintain the road, as well as its construction, is an encroachment on the jurisdiction of the county court was settled in the recent case of Dickinson v. Reeder, 143 Ark. 228, 220 S.W. 32, and the contention that the authority conferred on the commissioners to construct the public road constitutes an invasion of the jurisdiction of the county court is settled by decisions of this court too numerous to mention. The statute now under consideration is not different in any substantial particular from the statutes in the other cases thus decided.

It is earnestly argued in the next place that the act is void because it places no limitation upon the power of the assessors with respect to the amount of benefits assessed. The answer to this is that the statute only confers authority upon the assessors to appraise the value of the actual benefits, and a remedy is afforded against any abuse of that power. A public hearing is provided for after notice, so as to give every property owner a hearing before the board of assessors, and in addition to that a specified time is given for review of the assessments in a court of competent jurisdiction. We recently held that the chancery court has jurisdiction in such cases. Monette Road Imp Dist. v. Dudley, ante, p. 169. With these safeguards thrown around the action of the board of assessors it can not be said that the statute fails in any way to meet the requirements of the Constitution in regard to due process of law and the proper recognition of the rights of property. The attack upon the correctness of the assessments must fail because the action was not instituted within the period of time prescribed by the statute. We have upheld a similar statute as to the length of time given and as to the provision concerning the application to the court for relief. Reitzammer v. Desha Road Imp. Dist. No. 2, 139 Ark....