Parkview Land Co. v. Road Improvement District No. 1

• Court: Arkansas Supreme Court
• Writing for the Court: BATTLE, J.
• Citation: Parkview Land Co. v. Road Improvement District No. 1, 122 S.W. 241, 92 Ark. 93 (Ark. 1909)
• Decision Date: 25 October 1909
• Parties: PARKVIEW LAND COMPANY v. ROAD IMPROVEMENT DISTRICT NO. 1

122 S.W. 241

92 Ark. 93

PARKVIEW LAND COMPANY v. ROAD IMPROVEMENT DISTRICT NO. 1

Supreme Court of Arkansas

October 25, 1909

Appeal from Jefferson Chancery Court; John M. Elliott, Chancellor affirmed.

Decree affirmed.

Daniel Taylor, for appellant.

The act No. 247, of Acts 1907, is unconstitutional, being a conflict with section 28, article 7, of the Constitution of Arkansas which confers exclusive original jurisdiction in all matters relating to county roads, etc., upon the county court. See sections 1, 2, 8, 9, 27, 28 of the act. These sections are so repugnant to the Constitution that they should not stand, and with them eliminated the whole act must fall.

Taylor & Jones and W. F. Coleman, for appellee.

The act is not so repugnant as a whole to the Constitution that the unobjectionable purpose of the act to provide for the improvement of an old county road must necessarily fall with those provisions contemplating the laying out of new roads. 26 Am. & Eng. Enc. of L., 2d Ed. 570; Suth. Stat. Con § 170; 70 Ark. 94; 66 Ark. 36; 105 U.S. 305; 8 Cyc 1140. It is not in conflict with the provisions of the Constitution giving to county courts exclusive original jurisdiction in matters relating to county roads. The word "exclusive" means exclusive of other courts, and the word "original, " as employed, means as distinguished from appellate jurisdiction. As to "jurisdiction," see 17 Am. & Eng. Enc. of L., 2d Ed. 1041, and cases cited; 34 Ark. 105.

OPINION

BATTLE, J.

The Parkview Land Company brought suit in the Jefferson Chancery Court against Road Improvement District No. 1 of Jefferson County, the directors thereof, and Citizens' Bank. It alleged in its complaint as follows: That it is the owner of certain lands in Jefferson County, and that the same are situate within the boundaries of Road Improvement District No. 1, "which was formed under act No. 247 of the Acts of 1907, and in conformity with the provisions thereof, for the purpose of constructing about eight miles of macadam and gravel road within the district, assessing the cost thereof against the real property benefited in the district.

"That A. Brewster, P. P. Byrd and J. A. Clement are the duly appointed directors of said district, and that through them, as directors, the district has constructed about eight miles of road in Jefferson County, known as the 'Star City and Cornerville Road,' by grading, ditching and macadamizing same with crushed rock and gravel at a cost of about $ 30,000, for which bonds have been issued and sold, and pursuant to a resolution of the said board of directors are declared a lien upon the lands embraced in the district.

"That against plaintiff's land there is assessed a total betterment of sixteen dollars, upon which an annual tax of six per centum has been levied by the directors, which, by the terms of the act, is made a lien against all the lands of the district for which it is provided by said act plaintiff's land may be sold, if it be not paid.

"That act No. 247, together with the bonds aforesaid, the assessment of betterments and levy of annual taxes thereon purporting to be a lien against the lands, are invalid, because the act under which the district was formed is in conflict with the provisions of the Constitution of Arkansas vesting exclusive jurisdiction over roads in the county courts.

"That the bonds of the district, together with the assessment of betterments against the lands and levy of the annual tax of six per centum on the betterments provided by the act and claimed to be a lien against the lands, constitute a cloud upon the title of plaintiff to the lands. Unless restrained, the district will annoy plaintiff with numerous suits for the collection of the annual taxes. That the Citizens' Bank is the purchaser and holder of the bonds.

"Plaintiff prayed that the bonds, together with the resolution, contract and all acts of the board of directors in declaring the bonds to be a lien upon the lands of the plaintiff, be cancelled and held for naught; that the assessment of betterments against the lands and levy of the annual tax before mentioned be cancelled and held for naught, and that the district be enjoined from assessing any betterments against the lands of plaintiff or levying any annual or other tax on such betterments for the purpose of paying the cost of said improvement or reducing the bonds or any thereof, and that plaintiff's title be quieted in it free of such lien."

The defendants answered and denied "that the act conflicts with the provisions of the Constitution. They stated that the improvement contemplated and as actually made was for the purpose of improving a county road in Jefferson County, already in existence, by the construction of what is known as a macadam or gravel road over, upon and along such county road as mentioned in the complaint, for a distance of about eight miles between the terminal points of the county road as stated; that no part of the road is a new road, nor was it contemplated that any portion of such improvement should involve the laying out or establishing of any new public road or any portion thereof whatsoever. They denied that the bonds, assessment of betterments and levy of taxes now claimed and purporting to be a lien on plaintiff's lands are invalid."

The court found that "the improvements contemplated by the formation of Road Improvement District No. 1, and as actually made thereunder, were solely for the purpose of improving a county road in Jefferson County, Arkansas, already in existence, and which county road is an old and established county road of the county, and has been for many years, and that the road so improved is in no part a new road, nor was it contemplated that any portion of such improvement should involve the laying out or establishing of any new public road, or any portion thereof whatsoever," and dismissed the complaint for want of equity. The evidence sustained the findings of the court. Plaintiff appealed.

Appellant contends that act No. 247 of the Acts of General Assembly of 1907, under which Improvement District No. 1 was formed, is unconstitutional, because it is in conflict with section 28 of article 7 of the Constitution, which is as follows: "The county courts shall have exclusive original jurisdiction in all matters relating to county taxes, roads, bridges, ferries, paupers, bastardy, vagrants, the apprenticeship of minors, the disbursement of money for county purposes and in every other case that may be necessary to the internal improvement and local concerns of the respective counties. * * * *"

The act No. 247 is, in part, as follows: "Section 1. Whenever a majority in value of the owners of real property in a county or any part of a county (such majority in value to be determined by the assessment for purposes of general taxation in force at the time) shall present a petition to the county court of any county in this State, praying for the formation of a road improvement district, the said county court shall after having given public notice for twenty days by printed copies in ten places in said county or part thereof, one of which shall be posted on the principal door of the courthouse of said county, or by publication in some newspaper published in said county, determine the fact that such petition is so signed by such majority in value of said landowners. * * * *

"After such hearing, or opportunity to be heard, the said county court shall determine, and so enter upon the records, the fact of existence or non-existence of the assent of the said majority in value to the prayer of said petition. If the said county court shall make an order declaring that the said petition contains a minority in value of the landowners within the territory described in said petition and accompanying map, then the said finding shall be entered of record, and shall not thereafter be questioned except for fraud in the making thereof. Upon ascertaining, as aforesaid, that the necessary majority in value of the landowners have requested the formation of said district, the said county court shall make an order declaring the same to be and exist under the name and style of 'Road Improvement District No. . . . . of the County of . . . .' That the said district shall be and become a body politic and corporate by said name and may sue and be sued, implead and be impleaded, and have perpetual succession for the purpose of building, constructing, repairing and maintaining, within the territory described in said petition and order, such public roads as may be mentioned in said petition. * * * *

"Section 3. In the order declaring said road improvement district to exist the court shall appoint three persons, owners of real property therein, who shall compose a board of directors for the district. * * * *

"Section 9. The said board of directors shall have,...