Road Improvement District No. 1 of Grant County v. Toler

• Court: Arkansas Supreme Court
• Writing for the Court: SMITH, J.
• Citation: Road Improvement District No. 1 of Grant County v. Toler, 197 S.W. 702, 130 Ark. 410 (Ark. 1917)
• Decision Date: 01 October 1917
• Docket Number: 137
• Parties: ROAD IMPROVEMENT DISTRICT NO. 1 OF GRANT COUNTY v. TOLER

197 S.W. 702

130 Ark. 410

ROAD IMPROVEMENT DISTRICT NO. 1 OF GRANT COUNTY v. TOLER

No. 137

Supreme Court of Arkansas

October 1, 1917

Appeal from Grant Chancery Court, J. P. Henderson, Chancellor reversed.

Decree reversed and cause remanded.

Waddell & Nall and Rose Hemingway, Cantrell, Loughborough & Miles for appellant.

1. The reassessment was properly made. 121 Ark. 110.

2. The notice of assessment was sufficient. Act 1915, p. 143, § 10; 103 Ark. 462-3.

3. The presumption is in favor of the assessment. The assessment of benefits is presumed to be correct and the burden is upon the plaintiffs to set it aside. 80 Ark. 462; 84 Id. 262; 91 Id. 381; 99 Id. 523; 199 U.S. 203.

4. A reassessment was properly ordered. Acts 1915, p. 144.

5. The board had the right to substitute steel and concrete bridges for wooden ones and the assessments were properly raised. 55 Ark. 154; 90 Id. 37; 97 Id. 339; 105 Id. 68. The widest discretion is granted by the act. Act. 308, Acts 1917; Acts 1915, p. 39, etc.; 97 Ark. 339.

Mehaffy Reid & Mehaffy, for appellee.

1. Deviations from and additions to the original plans were unauthorized and void. 52 N.E. 479; 70 Id. 801; 64 N.W. 581; Acts 1915, p. 141; 50 Ark. 116; 26 So. 70; Black Int. Laws 115-119, 282-3; Cooley Taxation, p. 419; 61 N.W 1112.

2. The assessment for additional improvement was void. 62 A. 173.

3. Reassessment of benefits under original plan void even if authority existed. 125 Ark. 572; 119 Ark. 196; 83 Id. 54; 86 Id. 1. There must be a proportionate increase of benefits. 68 Ark. 376; 60 Ill. 19; 48 N.E. 155; 109 Id. 823; 69 So. 486; 147 N.W. 808, and others.

SMITH J. HART, J., dissents.

OPINION

SMITH, J.

This cause was heard upon an agreed statement of facts, the material portions of which are as follows: Road District No. 1 of Grant County, was created by Act No. 48 of the Acts of 1915, p. 136, and soon after its passage, the commissioners therein named met, organized and formed the necessary plans for the construction of the improvement contemplated in said act, and after deciding to make the improvement, they appointed the assessors, and after furnishing them the estimated cost of said improvement, caused said assessors to make the required assessment of benefits to accrue to the several pieces of property within the district provided for in said act. The estimated cost was fixed at about $ 163,000, to cover the cost of construction and incidental expenses, and upon this basis the benefits were fixed at $ 319,324, upon which bonds were issued amounting to $ 175,000, and sold for approximately $ 163,000 cash. In 1917 the commissioners ordered the assessors to reassess said lands, and the assessors met and adjusted some assessments of individuals and also raised the entire assessment, making about $ 64,000 additional increase. This assessment was turned over to the chairman of the board, who gave the notice thereof, the sufficiency of which was questioned in the court below but which does not appear to be questioned here.

The benefits first assessed against said lands amounted to $ 319,324, and bonds were issued, which, with the interest thereon, will amount to approximately $ 300,000. The original estimate of the cost of the construction of the road prior to the letting of the contract, and upon which the first assessment of benefits was based, was $ 148,000. The contract was let upon unit prices, so much for each item, and totaled $ 150,555.43, based upon the estimated quantities. The plans were subsequently changed to provide for steel and concrete bridges, in place of wooden bridges, at an increased cost of $ 25,700. The amount of earth taken exceeded the original estimate $ 4,652. The cost of gravel was reduced $ 8,614, and the cost of culverts greater by $ 600. The original contract for the road complete was let for $ 154,749, but this contract was for wooden bridges, and not for steel and concrete. The amount paid or to be paid for all engineering charges is 5 per cent. of the cost of construction, or about $ 8,250, and about $ 3,000 have been spent in court costs and attorney's fees in suits brought against the district and $ 2,500 have been paid for demurrage on cars of gravel. The benefits as originally assessed amounted to about $ 2.65 per acre, and the reassessment will make this average $ 3.20.

The actual cost of the steel bridges, as constructed, in place of wooden bridges, as originally specified, was $ 39,200.80. The construction of the road has already cost $ 156,778.76, and, when completed, will cost approximately $ 165,150, exclusive of engineering, legal and contingent expenses.

An additional agreed statement of facts was entered into, in which it was recited that the assessors assessed the benefits of the lands in said district in 1915, upon which taxes have been collected for two years, and on said lands bonds have been issued in the sum of $ 175,000. "That in 1917, the said commissioners ordered the assessors to reassess said lands, and the assessors did meet and adjusted some assessments of individuals, and raised the entire assessment, making about $ 64,000 additional. * * * It is also agreed that bonds issued in the sum of $ 175,000 run for twenty years, at 6 per cent. interest per annum, and that the total benefits first assessed against said land equal about $ 319,000, and that the bonds as issued, together with the interest thereon, will equal approximately $ 300,000."

Appellee sought, and obtained, an injunction against the increased assessments, and this appeal has been prosecuted to review that action of the court below.

A number of questions are discussed in the briefs, but they are all answered when we answer the questions asked by one of the appellees in his brief. These questions are:

"One. Does Act No. 48, of 1915, provide specifically for a reassessment of additional benefits in any sum for any purpose, after the first general assessment has been made and bonds thereon have been issued and sold?

"Two. Is the said reassessment based upon benefits due to the superior quality of the improvements made or is it not for the purpose of raising money to supply deficiencies caused from bad management in the course of construction and maintenance of said road?

"Three. Is it not true that if said commissioners have power to make the present attempted reassessment, they could create a condition at their own volition, any time, for another assessment regardless of actual necessity for it?

"Four. Would not the attempted reassessment be confiscatory if same exceeds the benefits to properties in the district?"

It is apparent that the first question is at once the important one and the difficult one.

This is a proceeding under a special act which gives the commissioners there constituted certain powers and imposes upon them certain duties. Necessarily, said commissioners have only such powers as are there granted, and can discharge only such duties as are there enjoined by the express terms of the act, or by necessary implication from its provisions. The Legislature might have prescribed the plans for this improvement, and, had it done so, no discretion would have abided in the commissioners. These plans could have been executed, and no other. A wide discretion, however, was vested in the commissioners, subject only to the approval of the county court of Grant County, and we must assume, in the absence of any stipulation to the contrary, that this approval has been duly obtained. Section 2 of the act recites that the district is organized for the purpose of improving that part of the Pine Bluff, Sheridan and Hot Springs road, lying in Grant County. The termini of the road in Grant County are fixed, and also its approximate course and direction. It is then provided in section 2 that "said highway is to be constructed of macadam or of such other material as the commissioners may deem best, and they are authorized to build such bridges and culverts as they may find desirable. Any bridges built shall be built as approved by the said county court."

Section 10 of the act...