Sanders v. Wilmans

• Decision Date: 25 June 1923
• Docket Number: 65
• Parties: SANDERS v. WILMANS
• Court: Arkansas Supreme Court

254 S.W. 442

160 Ark. 133

SANDERS v. WILMANS

No. 65

Supreme Court of Arkansas

June 25, 1923

Appeal from Jackson Circuit Court; Dene H. Coleman, Judge; reversed.

Judgment reversed and cause remanded.

Boyce & Mack, Jno. W. and Jos. M. Stayton, Thos. B. Pryor, H. L Ponder, Thos. S. Buzbee, Geo. B. Pugh and H. T. Harrison, for appellant.

The action of the commissioners in designating the benefited lands in their special report and the order of the county court responsive thereto are both void as being arbitrary and discriminatory. Territory in the city that would necessarily be benefited was left out. 130 Ark. 74; 139 Ark. 574; 142 Ark. 73; 145 Ark. 49. Demurrer should not have been sustained to sixth ground of appeal set out in the affidavit and prayer for appeal of H. C. Sanders. The appellee road district under provisions of Act 390, has entirely different powers and authority from a road district organized under the general road law, act 338, Acts 1915, under which it was organized. 150 Ark. 94. If appellant's property had been included in the district when it was created, the variance between the petition and the plots, the order creating the district, and the notice of the hearing of the petition could have been raised by them to invalidate the district. 147 Ark 352; 113 Ark. 566; 50 Ark. 116. The lower court erroneously held that they could not raise the question now, since it would be a collateral attack on the judgment. The authority for annexation of lands is contained in § 15 of the Alexander law. The said variance defeated the jurisdiction of the county court to create the district. If the remonstrances of appellants can be said to be a collateral attack on the order of the county court creating the district, the lower court erred in sustaining the demurrer, the jurisdiction of the county court was in issue, and a judgment is always open to collateral attack for want of jurisdiction. 142 Ark. 509; 127 Ark. 165; 59 Ark. 483; 64 Ark. 108; 124 Ark. 234; 127 Ark. 310; 23 Cyc. 1081, note 50. Doctrine of collateral attack does not apply, there having been no prior opportunity for attacking organization of district. Page & Jones, Taxation by Assessment, § 1008. The landowner whose property is later annexed to the district should have the same right and time to question the validity of the district as have the owners whose lands were included when district was organized. 123 Ark. 205; 133 Ark. 498. Certainly appellants had no status to complain of invalidity of district before these lands were included in it.

Gustave Jones and Rose, Hemingway, Cantrell & Loughborough, for appellees.

The testimony shows that the city of Newport is within a mile and a half or two miles of the west end of the main road artery, and witnesses were of opinion that the road would greatly increase the travel to and trade within that city. 251 U.S. 182. Said city is adjacent to and benefited by the improvement. 139 Ark. 153. Act 390 of 1920 did not reserve district from provisions of the Alexander law, but only recognized its organization thereunder, gave the commissioners some additional powers, and reserved the 30 per cent. limitation on cost. 146 Ark. 287; 145 Ark. 438; 134 Ark. 30. The Alexander law authorizes the extension of boundaries to include city. The boundaries of the district are as clearly shown on the plot as could reasonably be expected, considering its situation. The land not correctly shown on plot was a negligible quantity, and the cases cited by appellant, 147 Ark. 352; 113 Ark. 566; 104 Ark. 298, can have no application here. Act 290, approved March 26, 1920, confirms organization of district. 146 Ark. 287; 145 Ark. 438; 134 Ark. 30. Question of variance may not be raised in this special proceeding. Inquiry is confined to single question, whether the district boundaries should be extended. Counsel, in relying on 127 Ark. 165, and 127 Ark. 310, overlook that the application of the rule announced therein and in similar prior cases was expressly overruled in 139 Ark. 424, and the new rule was expressly applied in 134 Ark. 292, 137 Ark. 587, and in 143 Ark. 341. No arbitrary and discriminatory action in not including the 12 acres on the north line of section 12 that would invalidate proceedings, and cases cited by appellant are not applicable to facts of this case. Boundaries can yet be extended to include the twelve acres. 140 Ark. 474; 153 Ark. 5; 13 Law Reporter, 702. Ball was a de facto officer, and his action as assessor cannot be attacked in this proceeding. 117 Ark. 30, 52 Ark. 386; 129 Ark. 286. 126 Ark. 231; 65 Ark. 343; 133 Ark. 277; 138 Ark. 339; 147 Ark. 181; 142 Ark. 519; 55 Ark. 81. Evidence not sufficient to overturn the assessments, which were regularly made and are presumed to be fair and equitable. 113 Ark. 493; 143 Ark. 44; 143 Ark. 261. The proceedings for extending boundaries of the district were regular and lawful, and the assessment of benefits should be sustained.

Boyce & Mack, Jno. W. and Jos. M. Stayton, Thos. B. Pryor, H. L. Ponder, Thos. S. Buzbee, Geo. B. Pugh and H. T. Harrison, in reply.

The law requires the boundary lines of the district to be accurately, plainly shown on the plot, and does not excuse the making of the plot on so small a scale as not to do it. 146 Ark. 288; 147 Ark. 349. Act 390 of 1920 does not cure irregularities in the organization of the district, does not even purport to be a curative act, as in 145 Ark. 438; 134 Ark. 30. Roads built outside of district. Rector v. Board of Imp., 50 Ark. 116; 103 Ark. 269; 131 Ark. 60, have no application here. Sixth ground of appeal to which demurrer sustained not a collateral attack upon judgment creating district. Cases cited in support of contrary contention reviewed and distinguished, supported by 142 Ark. 509, which is not overruled by 139 Ark. 424. Construction of § 15 contended for by appellants results in class legislation without any proper basis for the distinction or classification. 174 U.S. 96; 135 S.W. 773; 184 U.S. 540. The assessment is invalid. Rule as to officers de facto does not apply in this case, which is a direct attack. 71 Ark. 17.

OPINION

MCCULLOCH, C. J.

Road Improvement District No. 2 of Jackson County was organized under the general statutes (Act No. 338 of the General Assembly of 1915, Crawford & Moses' Digest, § 5399 et seq.) for the purpose of constructing a road in Jackson County beginning near the eastern boundary of the city of Newport and running east and southeast, with branches to two different points. The district, as first organized, contained approximately 125,000 acres of land extending up to the city limits of Newport. Plans were formed for the construction of the improvement, bonds were issued, and the road was partially constructed, when the board of commissioners of the district determined that other adjoining lands, including the whole of the city of Newport, would be benefited by the improvement, and they caused the anticipated benefits to said lands to be assessed, and filed a special report with the county court asking that the lands thus assessed be added to the district for the purpose of taxing the benefits. The lands described in the special report, including the city of Newport, constituted about 3,000 acres.

Appellants are the owners of lands embraced in the territory to be added, and they appeared in the county court, pursuant to the notice published by the commissioners, to resist the entry of an order of the court including these lands, and also to challenge the fairness and correctness of the assessment of benefits. The county court overruled the objections of appellants to the addition of the territory to the district, but sustained their objections to the assessment of benefits, and reduced the same fifty per centum of the amount as returned by the assessor. Appellants prosecuted an appeal to the circuit court of Jackson County, where the cause was heard anew, and the circuit court sustained the order of the county court adding the new territory to the district, but found that the assessments were discriminatory and void, and entered a judgment striking out said assessments. There is an appeal on the part of both sides to the controversy, and the original contestants will be referred to as the appellants and the commissioners of the district will be referred to as the appellees.

This district was formed by order of the court pursuant to the general statute, a section of which (Crawford & Moses' Digest, §§ 5626-28) provides that, when it is found by the commissioners that other lands not embraced within the boundaries of the district as originally organized will be benefited by reason of the improvement "made or about to be made," they shall cause to be made an assessment of the anticipated benefits to said lands, and file a special report to the county court; that the court shall set a date for hearing, and that notice shall be given of such hearing, at which time the court is authorized to make an order including said additional lands in the district, and confirming the assessment of benefits.

The General Assembly, at the extraordinary session in February 1920, enacted a special statute with reference to the district, conferring additional powers in certain respects and removing certain restrictions. The effect of the statute was to remove from the operation as to this district the feature of the general statute limiting the cost of the improvement to thirty per centum of the assessed value, and the act also authorized the construction of two lateral roads connecting with the main road. The remainder of the act is substantially a reiteration of certain powers conferred in the general statute, such as borrowing money, making additional levies to complete the improvement...