Poe v. Street Improvement District No. 340

• Decision Date: 25 June 1923
• Docket Number: 72
• Citation: 252 S.W. 616,159 Ark. 569
• Parties: POE v. STREET IMPROVEMENT DISTRICT NO. 340
• Court: Arkansas Supreme Court

252 S.W. 616

159 Ark. 569

POE v. STREET IMPROVEMENT DISTRICT NO. 340

No. 72

Supreme Court of Arkansas

June 25, 1923

Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor affirmed.

Decree affirmed.

R E. Wiley and McConnell & Henderson, for appellant.

A law providing for the creation and levying of an assessment without giving the taxpayer an opportunity to be heard in opposition to the assessment or valuation of his property before his liability is fixed, is void. 39 F. 891; 36 F. 385; 111 U.S. 701; 18 F. 385; 74 N.Y. 183; 224 U.S. 271; 224 U.S 317. Unless notice sufficient to constitute due process of law the entire assessment is void. Page & Jones, 137. It is not sufficient that the landowner has constitutional remedy to bring suit by injunction to relieve his property against enforcement of an illegal exaction. Sec 13. art 16, Constitution 1874. Act does not adopt the provisions of the general law for making assessments (§ 5733, C. &. M. Dig., 106 Ark. 252). Statutes can not be enacted by reference. Sec. 23 art. 5, Constitution of Arkansas. No provision being made for the assessment of benefits, the annexation act and proceedings thereunder are void. 125 Ark. 57; 142 Ark. 52; 147 Ark. 160. The complaint alleged a cause of action, and the demurrer should have been overruled.

John M. Shackleford, for appellees.

This proceeding challenges the validity of the annexation of territory to an existing improvement district pursuant to provisions of § 5733, C. & M. Digest. The law is constitutional. Sec. 5647-5720 do not violate due process of law clause either Constitution, State or Federal. "Basis" defined. Webster. The general law (§ 5660-5662, C. & M. Digest) provides for notice, hearings and appeals on the assessments when filed, and the annexed territory becomes part of the original district subject to such law. 91 Ark. 5; 147 Ark. 363. Due process of law, 122 U.S. 471; 40 Ark. 206; 38 Miss. 424; 68 Tenn. 202; 183 U.S. 471; 182 U.S. 540. Act 280 of 1919 does not violate § 23, art. 5, Constitution of Arkansas. 102 Ark. 411; 133 Ark. 157; 131 Ark. 291. All doubts must be resolved in favor of the constitutionality of a law. 34 Ark. 267; 35 Ark. 59; 37 Ark. 496; 58 Ark. 113; 60 Ark. 343; 94 Ark. 420; 100 Ark. 178; 153 S.W. 821; 44 N.E. 779; 150 N.Y.S. 200; 50 P. 522; Sutherland on Statutory Construction, § 236; 140 Ark. 398; State v. Smith, 40 Ark. 431. In ascertaining the legislative intent and in order to conform to it, error in an act may be corrected or word rejected and others substituted. 109 Ark. 556; 94 Ark. 422; 80 Ark. 150; 93 Ark. 168; 95 Ark. 327; 99 Ark. 149; 100 Ark. 175; 106 Ark. 517; 2 Sutherland on Statutory Construction, § 376; 145 Ark. 283; 150 Ark. 486; 35 Ark. 56; 37 Ark. 495; 71 Ark. 556; 117 Ark. 606; 149 Ark. 183. Act 280 of 1919 and a like provision in act 246 of 1909 have been upheld. 125 Ark. 57; 143 Ark. 625; 154 Ark. 139; 76 Ark. 443; 73 Ark. 536; 131 Ark. 429; 112 Ark. 437; 123 Ark. 184. If act of 1919 unconstitutional, act of 1909 remains unimpaired. 85 Ark. 346; 97 Ark. 322. The judgment should be affirmed.

Rowell & Alexander and Coleman & Gault, amici curiae.

Act 280 of acts 1919, § 5733, C. & M. Digest, is a valid enactment, and the property annexed to the district becomes part thereof and subject to the law regulating the original district. § 5656, C. & M. Digest. Rules of construction to arrive at legislative intent. 133 Ark. 157; 40 Ark. 431; 109 Ark. 556; 2 Lewis' Sutherland, Statutory Construction. To say that the statute makes no provision for the assessment of benefits is to give it a construction which defeats its apparent purpose. Neither is the statute in conflict with § 23, art. 5, of the Constitution. 125 Ark. 57; 111 U.S. 701; 28 L. ed. 569; 96 U.S. 97; 20 N. M. 77; 146 P. 950; 145 Ark. 51. Act 246 of acts 1909, which was in force when the act in question was passed, provided a complete method of assessments, as held in White v. Loughborough, 125 Ark. 57. Since the later act only repeals parts of former in conflict, the method of assessment would remain in force. We insist, however, that the act of 1919 intended to provide that the assessment of lands in the annexed territory should be made as though they had been in the district from its organization, and §§ 5656-5701 would apply.

WOOD, J. SMITH, J., did not participate.

OPINION

WOOD, J.

The appellant, an owner and taxpayer of real estate in District No. 340 of the city of Little Rock, filed his complaint in the Pulaski Chancery Court against the district and its commissioners, the appellee, in which he set up, in substance, that District No. 340 was duly established for the purpose of paving and improving Broadway Street in the city of Little Rock from Markham Street southward to the north line of Tenth Street; that thereafter a majority in value of the owners of real property abutting on Broadway Street petitioned the city council of the city of Little Rock to annex the real property extending on Broadway Street from the north line of Tenth Street southward to the south line of Twenty-second Street; that the council on May 7, 1923 enacted ordinance No. 3181, which provided for the annexation to Street Improvement District No. 340 of all territory described in the petition; that the commissioners of District No. 340 have accepted the annexation and treated the property so annexed as part of the territory of District No. 340, and are proceeding to assess benefits in the annexed territory, and will complete said assessment of benefits and construct the improvement unless restrained; that act No. 280 of the Acts of 1919, under which the council is proceeding to annex the territory, is void because no sufficient provisions are made therein for the assessment of benefits and collection of taxes in the annexed territory, in that no notice of said assessment to the landowners and no opportunity to be heard thereon is provided, and no provision is made for the adjustment and correction of assessments, and no appeal from such assessments is provided; that no appointment of assessors is provided for, and no oath of those making the assessment is required; that no provision is made in the act for the levy or collection of any assessment or tax out of the assessment of benefits; that the commissioners of District No. 340 have caused plans to be made for the improvement in the annexed territory and incurred expense therefor, and are proceeding and will proceed to incur additional expense in making the assessments, if not restrained; that it is the intention of the commissioners to borrow money and issue bonds for the construction of the improvement in the annexed territory, and to pledge and mortgage the assessment of benefits on all the lands in such territory to secure the payment of these bonds, which will create a cloud upon the title of the appellant.

The appellant prayed that ordinance No. 3181, under which the appellees are proceeding, be declared invalid, and that the intended annexation of the territory thereunder be canceled and held for naught, and that the appellees be enjoined from proceeding thereunder. The appellant made ordinance No. 3181 an exhibit to his complaint.

The appellees demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The court sustained the demurrer. The appellant stood on his complaint, and the court entered a judgment dismissing the complaint for want of equity, and for costs against the appellant, from which is this appeal.

Act No. 280 of the acts of 1919 (5733 of Crawford. & Moses' Digest), is as follows: "When persons claiming to be a majority in value of the owners of real property in any territory contiguous to any improvement district organized in any city or town desire that said territory shall be annexed to such improvement district, they may present their petition in writing to the city or town council, describing the territory to be annexed and the character of the improvement desired. Thereupon the city or town council shall direct the clerk or recorder to publish for two weeks, in some newspaper issued and having a general circulation in the county where such city or town is situated, a notice calling upon the property owners to appear before said council on a day named, and show cause for or against such annexation. On the day named in said notice the city or town council shall hear all persons who desire to be heard on the question whether a majority in value of the owners of real property in the territory sought to be annexed have signed such petition, and its findings shall have all the force and effect of a judgment, and shall be conclusive, unless, within thirty days thereafter, suit is brought in the chancery court to review it. The finding of the council shall be expressed in an ordinance in case it is in favor of the petitioners, and in that event the territory sought to be annexed shall become a part of the improvement district, and the improvements petitioned for shall be made by the commissioners. The commissioners shall make the assessment for said improvement on the territory annexed, under the provisions of this act, on the same basis as if said territory was included in the original district. If petitioned for, the improvement in the territory annexed may be of different material or of a different method of construction from that in the original district."

The appellant contends that the act under which the appellees are proceeding provides no fixed place or date for the meeting of the commissioners for the assessment of benefits, and does not provide any notice to the landowner of the assessment of benefits and does not give him any opportunity to be heard on the assessment of benefits, and...