Pritchett v. Road Improvement District No. 3 of Poinsett County

• Decision Date: 08 March 1920
• Docket Number: 229
• Parties: PRITCHETT v. ROAD IMPROVEMENT DISTRICT NO. 3 OF POINSETT COUNTY
• Court: Arkansas Supreme Court

219 S.W. 21

142 Ark. 509

PRITCHETT v. ROAD IMPROVEMENT DISTRICT NO. 3 OF POINSETT COUNTY

No. 229

Supreme Court of Arkansas

March 8, 1920

Appeal from Poinsett Circuit Court, First Division; R. H. Dudley Judge; reversed.

Judgment reversed, and cause remanded.

J. F Gautney, for appellants.

The county court, July 12, 1917, established this district, No 3, and "eliminated" the lands of appellants from the district. No appeal was taken and the judgment became final, and the lands could not afterward be included by extending the boundaries of the district and include a different route. The proceedings against appellants' lands are void. 69 Ark. 587; 124 Id. 234; 64 Id. 108; Ib. 555; 123 Id. 383; Ib. 389; 133 Id. 491; 123 Id. 205. The lands embraced were not found to be benefited by the commissioners. 69 Ark. 587. The error is manifest and the injury is substantial. 11 C. J. 130, §§ 83-4. The only remedy was by certiorari. 68 Ark. 205; 124 Id. 234; 133 Id. 491. The order should be quashed.

J. W. Rhodes, Jr., and Lamb & Frierson, for appellees.

1. The district is the territory embraced and established by order of the county court and not that included in the original petition, and the land eliminated was foreign to the district and could be added if benefited by change of plans. Act No. 3, Acts 1917, § 16, etc. The proceedings were regular. To hold that the lands could not be added would be to absolutely ignore the word eliminate in the act.

2. The district can in good faith accept the judgment of the court eliminating the lands and then afterward change the plans and ask for the addition of those lands if benefited by the change. This is reason and common sense.

3. The alteration of plans and extension of boundaries was regular and in accordance with the statute. 133 Ark. 491 is not applicable.

4. Certiorari is a writ of discretion and under the facts of this case appellants are estopped, and the court correctly exercised its discretion to refuse the remedy by certiorari. The objection to the evidence of Rhodes and McRaven was waived. As evidence dehors the record may be introduced. Kirby & Castle's Digest, § 1432; 123 Ark. 205; 89 Id. 605; 52 Id. 13. Certiorari can not be used as a substitute for appeal. 52 Ark. 213. See also 5 R. C. L. 254; 11 C. J., p. 88, § 2, p. 128, § 78; Ib. § 134, p. 186, § 309, p. 208 and § 374.

4. The detriment to the public may be considered. 89 Ark. 604; 54 Id. 372; 52 Id. 221; 43 Id. 243-262; 124 Id. 525; 89 Id. 604; 130 Id. 39. The judgment is right.

OPINION

MCCULLOCH, C. J.

Appellee, Road Improvement District No. 3 of Poinsett County, was duly formed by an order of the county court of Poinsett County entered July 12, 1917, on petition of a majority of the owners of real property in the proposed district. The route of the road was specifically described in the petition, and was to begin at the town of Marked Tree and run thence east and north to the town of Lepanto, and thence northeasterly to the Mississippi County line, covering a total distance of about fourteen miles.

Appellants were at that time, and are now, the owners of land situated in the district as originally proposed, and they appeared in the county court and presented objections to the inclusion of their lands in the district, and the court in rendering final order forming the district eliminated the lands of appellants from the district. There was no appeal from that order of the county court.

The commissioners of the district proceeded with the plans for the construction of the proposed improvement, but upon the recommendation of the engineers decided to alter the plans by shifting the route of the road one-fourth of a mile from the original route as originally planned for a distance of one mile. Further alterations were made in the plans so as to construct six separate laterals in the aggregate covering a distance of 8 1/4 miles in length. The plans as thus altered were submitted to the county court by the commissioners and approved, and the court appointed the members of the board of assessors to assess benefits. The assessors proceeded to make the assessment of benefits, and included in their assessment lists the lands of appellants, which had been eliminated from the boundaries of the district. On the filing of the report of the assessors the county court ordered publication to be made, which was done, and the assessments were on a subsequent day approved by order of the county court, and the boundaries of the district were extended so as to include the lands not within those boundaries according to the order as originally entered forming the district. This order was rendered by the court on October 11, 1918, but part of the order, viz.: That part which extended the boundaries of the district, was omitted from the entry and was subsequently, on January 6, 1919, entered nunc pro tunc, so as to correct the omission. Appellants filed their petition in the circuit court of Poinsett County on November 12, 1919, praying for a writ of certiorari to bring up the record of the proceedings of the county court and that those portions of the order of the county court extending the boundaries of the district and approving the assessments on appellants' lands be quashed. The record was brought up under the writ, but on final hearing of the cause in the circuit court relief as prayed for by appellants was denied and their petition was dismissed.

The contention of appellants is that the original order of the county court eliminating their lands from the boundaries of the district, as formed, is conclusive of the power to tax those lands for the construction of the improvement, and that the county court was without jurisdiction subsequently to extend the boundaries so as to reinclude those lands and to assess them. If the contention of appellants is correct that the court had no authority under the statute to reinclude the eliminated lands and to assess the benefits, then the court was without jurisdiction over these lands, and certiorari was the proper remedy to reach the void orders of the county court in order to quash them. Griffin v. Boswell, 124 Ark. 234, 187 S.W. 165.

The road district was created pursuant to the terms of the general statute of March 30, 1915 (Acts 1915, p. 1400), and section 2 of that statute provides that in passing on the petition for the formation of such a district "if the county court is of the opinion that any part, or parts, of the territory included in the petition and plat is not benefited by the proposed improvement, the court may, in the order creating said district, eliminate such territory from the boundaries of the district." Section 15 of the statute reads in part as follows:

"Whenever the commissioners find that other lands not embraced within the boundaries of the district are benefited by reason of the improvement made, or about to be made, they shall instruct the assessors herein provided for to assess the benefits accruing to such lands by reason of the improvement, and shall file a special report in the county court setting up the lands so benefited together with assessment of benefits made by the assessors of the district. * * * At the hearing which shall not be held earlier than five days after the last insertion of said notice, the county court shall investigate as to whether the land beyond the boundaries of the district are really benefited by reason of the improvement, and, if it finds that said lands are benefited, the boundaries of the district will be so extended as to embrace the land so benefited and the county court at the same time shall also consider the assessment of benefits so made on said land and enter its finding thereon in accordance with section 12 of this act."

One of the contentions of learned counsel for appellees in support of the validity of the court's order re-including the lands of appellants is that the original order of the county court eliminating those lands from the boundaries of the district and creating the district with those lands eliminated constituted the formation of the district as if these lands had never been included in the petition and left the other provisions of the statute governing such proceedings in full operation. In other words, the contention is that the district stood as if appellants' land had never been included, and that if it was subsequently ascertained by the board of assessors that those lands would be benefited the boundaries of the district could be extended under authority of section 15 of the statute, quoted above, so as to include those lands and authorize their assessment.

This view of the statute would put the two sections (section 2 and section 15) in conflict with each other, for one of the sections authorizes the elimination of lands from the boundaries of the district and the other authorizes the extension of the boundaries so as to include new territory and if both sections are operative upon the same lands, then the two orders of the court thereunder would be conflicting. The manifest purpose was to provide a method in section 2 for the adjudication by the county court in advance of the question of...