Sallee v. Dalton

• Citation: 213 S.W. 762,138 Ark. 549
• Decision Date: 05 May 1919
• Docket Number: 202
• Parties: SALLEE v. DALTON
• Court: Supreme Court of Arkansas

213 S.W. 762

138 Ark. 549

SALLEE v. DALTON

No. 202

Supreme Court of Arkansas

May 5, 1919

Appeal from Randolph Chancery Court; Lyman F. Reeder, Chancellor affirmed.

Decree affirmed.

Jerry Mulloy, for appellant.

1. The act is unconstitutional and void. From its language it cannot be determined with any degree of certainty the territory comprised in the district or meant. The language is uncertain, indefinite and ambiguous. 86 Ark. 172; 110 S.W 801; 60 Id. 27; 68 Ark. 462; 34 Id. 224. The territory should be clearly defined and bounded. 28 Cyc 128-131, 180.

2. A glance at the profile, which is an exhibit, shows that the territory included comprises from four-fifths to five-sixths of the entire area of Randolph County, or 633 square miles. The act contemplates repair of old roads, the establishment and construction of many new ones, aggregating 110 miles with necessary bridges and culverts. Section 2 limits the expenditure to $ 3,000 per mile, such provision, however, not applying to the proposed roads from Pocahontas to McIlroy's Ferry and from Maynard to Richardson's Ferry and Bigger's Ferry, and not including interest on money borrowed. The most conservative estimate possible fixes the total expenditure at $ 330,000 and this wholly without regard for any additional cost which might be incurred in the improvement of the roads excepted from the limitation above referred to, the cost of bridges and cost of condemnation and laying out new and unestablished roads, and expenses of engineering, commissioners, attorneys' fees, etc., thus indicating an initial cost of say $ 380,000, or "frenzied finance."

3. The act attempts to usurp the jurisdiction of the county courts. Const., art. 7, § 28; 117 S.W. 544; 132 Id. 444; 89 Ark. 513; 177 S.W. 424. The act is an infringement upon the constitutional authority of the county court and void. Cases supra. See also 50 Ark. 116; 6 S.W. 519; 97 Ark. 322; 86 Id. 1; 176 S.W. 676; 134 S.W. 618. The Legislature cannot create a district, irrespective of its territorial extent, for the establishment of a new public road, and impose upon the county court the cost and maintenance of same. 132 S.W. 444; 117 Id. 544, and cases supra; 177 S.W. 424, etc.; 203 S.W. 260.

4. The Legislature cannot add to or take from the constitutional jurisdiction of the court. 15 C. J. 858; 94 Ark. 65; 126 S.W. 90; 27 Ark. 202; 2 Id. 93; 117 S.W. 426.

J. J. Lewis and Rose, Hemingway, Cantrell & Loughborough, for appellees.

There is no reason why the Legislature should not sanction the making of any number of improvements by the same district. The decision in 86 Ark. 331 that an entire county could not be formed into one road district is obiter. 118 Ark. 294 does not apply. See 95 Ark. 496; 102 Id. 306; 125 Ark. 325; 201 S.W. 808; 209 Id. 81; 130 Ark. 507; 201 S.W. 808. The present act does not offend either the rule of territorial extent or surety. No new roads were laid out by the act. The county court on petition can still lay them out and the burden of maintaining them is still upon the county court. If new roads are opened or old ones changed the damages must be paid by the district. The words "all lands" cannot include personal property. The act is not void.

McCULLOCH C. J. HART, J., dissenting.

OPINION

McCULLOCH, C. J.

The General Assembly of 1919 enacted a special statute (Act No. 135) creating a road improvement district in Randolph County designated as Western Randolph County Road Improvement District covering territory described as "all of Randolph County west of the Current and Black rivers." The statute authorizes the improvement of eleven connecting highways, four of which radiate from Pocahontas, the county site, and the others connect with those roads.

The validity of the statute is challenged by appellant, an owner of real property within the district, who instituted this action in the chancery court of Randolph County to restrain the commissioners of the district from proceeding to organize and construct the improvement and levy assessments, etc. The district covers about three-fourths of Randolph County, being, as shown in the record, all the uplands of the county, and the bottom lands of the county lie east of the rivers mentioned. Six of the roads are described in the statute as being old-established public roads, but the several routes for the other five roads are to be selected by the commissioners, the termini of each of those roads being, however, definitely stated. The first road mentioned in the statute is described as follows: "A road from Pocahontas to McIlroy's Ferry on Current River, following the old road as nearly as practicable." The other five established roads are described in similar language, giving the termini of each, and the descriptive clause in each instance concludes with the words "following the old road as nearly as practicable."

The case was tried on an agreed statement of facts in which it is stipulated, among other things, that the roads "to be improved as mentioned and described in said act are now regularly established and existing public highways, and before any other or different route can be adopted by the commissioners of said district, the county court of said county must open, lay out and establish same in the manner required by law." It is contended here that the above clause of the agreement refers only to the six established roads, and not to the other five roads to be selected by the commissioners. We do not, however, deem that matter important under the view we take of the law applicable to the case. There are two of the sections (3 and 5) which are especially pertinent to the controversy, and which read as follows:

"Section 3. If any part of said road has not been laid out as a public road, it is hereby made the duty of the county court of Randolph County to lay the same out in accordance with Act No. 422 of the Acts of the General Assembly of the State of Arkansas for the year 1911, entitled 'An Act to amend section 7328 of Kirby's Digest of the Statutes of Arkansas,' approved May 31, 1911."

"Section 5. It is made the duty of said commissioners to proceed as rapidly as possible with the improvement of the road hereinbefore described, improving it in such manner as they deem to the best interests of the property owners, and they shall also maintain said road in good condition after its completion. As soon as possible, the commissioners of said district, shall form their plans for the improvement with the aid of the State Highway Department and of such engineers as they see fit to employ, and shall file the same with the county clerk of Randolph County, along with specifications and an estimate of the cost. If said commissioners deem it to the best interests of the district to vary the line of the road, as hereinbefore laid out, they may report that fact to the county court of Randolph County, and in that event, if the county court approves of the report, it may make an order changing the route of the road, and if necessary, it shall, in that event, lay out the new road in the manner hereinbefore provided."

It is first contended that the statute is void for the reason that the territory is not definitely described, in that there is a well-founded doubt whether or not the territory between the two rivers mentioned is to be included in the district. We do not think there is any ambiguity in the language of the statute or any doubt whatever about the territory to be embraced in the district. Black River flows southwesterly across the southeastern part of the county. Current River is west of Black River and also flows in a southwesterly direction and empties into the Black in Randolph County about midway between Pocahontas and the eastern line of the county. The language in the statute "West of the Current and Black Rivers" undoubtedly means all of the territory west of Current River down to its junction with Black and all west of Black below that point. It does not include the lands lying between the two rivers.

It is also contended that the territory is so extensive and covers such a great portion of the county, that it provides for so many different roads and is a project of such great magnitude that the improvement of these roads cannot be treated as a single improvement so as to be the subject-matter of one district. The statute constitutes a legislative determination of the singleness of the project, and we cannot say that the decision of the lawmakers is obviously erroneous and arbitrary. The roads, as before stated, radiate from the county site, which is the principal town in the county, and perhaps the center of population and business, and they afford transportation facilities for all of the lands of like character in the county. The other roads connect with the four main ones. The case is definitely ruled, we think, by former decisions of this court. Conway v. Miller County Highway & Bridge District, 125 Ark. 325, 188 S.W. 822; Bennett v. Johnson, 130 Ark. 507, 197 S.W. 1148; Marshall v. Baugh, 133 Ark. 64, 201 S.W. 808; Tarvin v. Road Improvement District No. 1 of Perry County, 137 Ark. 354, 209 S.W. 81.

The courts have nothing to do with the policy of creating large districts for the construction of improvements at enormous costs to the owners of land. That is a matter which addresses itself entirely to the Legislature, the presumption being that the will of the owners of property was considered in the enactment of the statute. The only thing with which we have to do is the question whether or not the act is within the constitutional powers of the Legislature.

The principal attack made on the validity of the statute is that it constitutes an invasion of the jurisdiction of the county court over the roads and highways...