Road Improvement District No. 1 v. Glover

• Decision Date: 08 March 1909
• Citation: 117 S.W. 544,89 Ark. 513
• Parties: ROAD IMPROVEMENT DISTRICT NO. 1 v. GLOVER
• Court: Arkansas Supreme Court

117 S.W. 544

89 Ark. 513

ROAD IMPROVEMENT DISTRICT NO. 1 v. GLOVER

Supreme Court of Arkansas

March 8, 1909

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

Decree affirmed.

J. C Marshall, for appellant.

1. The act is not objectionable on the ground that it conflicts with art. 7, § 28, Const. This court has held that the term "taxes" as here used meant general taxes, and the term internal improvements and local concerns referred to those for general county purposes, and not for local purposes. 21 Ark. 40; 48 Ark. 370; 59 Ark. 513; 64 Ark. 562. A similar construction of the word "roads" relieves the act of any objection as to its constitutionality. If the view be taken that the building of roads by local assessments constitutes internal improvements in the same sense that levees so built are, the jurisdiction of the county court is not ousted. 79 Ark. 154.

2. Assessments may be made either according to the value of the lands or according to the benefits. 69 Ark. 68, 78; 77 Ark 384; 81 Ark. 562; 181 U.S. 394. The act in question adopts the former method. It must be understood to limit assessments to benefits. 71 Ark. 17, 27.

Ratcliffe Fletcher & Ratcliffe, for appellee.

1. The act conflicts with art. 7, § 28, Const., conferring on county courts "exclusive original jurisdiction in all matters relating to county taxes, roads, bridges," etc. 32 Ark. 131, 140; 2 Cooley, Torts [3d] 806; 21 Ark. 40; 79 Ark. 154.

2. A special assessment can be supported only on the theory that the property assessed will be specially benefited by the improvement for which the assessment is levied. The assessment must not exceed the benefit, and must be apportioned according to the benefit. 48 Ark. 370 et seq. and authorities cited; 69 Ark. 76-8; 71 Ark. 21-7; 172 U.S. 269; Cooley on Taxation [2d Ed.] 638 n. 3 and 639, 661; 48 Ark. 37 et seq.; 125 U.S. 345; 31 L. Ed., 763; 72 Ark. 119; 181 U.S. 324; 149 U.S. 30, 37 L.Ed. 637; 59 Ark. 513. The act has not provided specifically that the assessment shall be in proportion to the value of the property, hence no provision that the benefits shall be in proportion to the value. The manner of apportioning the assessments must be got, if at all, by construction.

OPINION

BATTLE J.

Sections one, two and nine of the act entitled "An act to provide for the creation of improvement districts for the building, constructing, maintaining and repairing of public roads in the State of Arkansas," approved April 4, 1907, are, in part, as follows:

"Section 1. Whenever a majority in value of the landowners of any county, or part of a county, such majority in value to be determined by the assessment for the 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 notice for twenty days by printed copies posted in ten places in said county or a part thereof, one of which shall be posted on the principal door of the court house of said county, determine the fact that such petition is so signed by such majority in value of said land owners. * * *

"Section 2. * * * Upon ascertaining, as aforesaid, that the necessary majority in value of the land owners 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 '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 from time to time be designated by the board of directors thereof, to be chosen as hereinafter stated."

"Section 9. All roads built, constructed, maintained, and repaired under the authority of this act shall be public roads, and, after the roads shall have been built, constructed, maintained, and repaired, the same shall be and constitute a part of the general highways of the county, to be thereafter cared for and maintained by the county court out of the general revenues and special road tax authorized by the Constitution and laws of the State of Arkansas."

Is this act valid? Its object is to authorize the county court of any county to form such county, or parts thereof, into a district or districts upon petition of a majority in value of the landowners in such county or part of a county, for the purpose of "building, constructing repairing and maintaining" roads within the district; the cost and expense thereof to be defrayed by assessments upon the lands benefited, with such aid as the county court may contribute. Such districts are based and sustainable only upon the theory that the local assessments levied to sustain them are imposed upon the property of persons who are specially and peculiarly benefited in the enhancement of the value of their property by the expenditure of the money collected on the assessment; and that while they are made to bear the cost of the local improvement they at the same time suffer no pecuniary loss thereby; "their property being increased in value by the expenditure to an amount at least equal to the sum they are required to pay." Rector v. Board of Improvement, 50 Ark. 116, 129, 6 S.W. 519. According to this theory, the district should not extend beyond the limits of the benefits of the improvements made in pursuance of the object of its organization, and should not be so extended by many and independent improvements as to include territory in no wise affected by all the improvements. It is obvious the State can not be organized into a district to construct or maintain improvements to be paid for with money derived from local assessments. So counties cannot be organized into districts for the building, repairing and maintaining roads without usurping the exclusive jurisdiction of roads vested in county court by the Constitution. Its roads and need for roads are too numerous, diverse and independent and some too remote from each other, to be embraced in one district and sustained by local assessments. In such a case the board of directors of the road district would become a partial substitute for the county court vested with its jurisdiction over roads. [We do not mean to...