Sanders v. Wilmans

• Decision Date: 25 June 1923
• Docket Number: (No. 65.)
• Citation: 254 S.W. 442
• Parties: SANDERS et al. v. WILMANS et al.
• Court: Arkansas Supreme Court

Page 442

254 S.W. 442

SANDERS et al. v. WILMANS et al.

(No. 65.)

Supreme Court of Arkansas.

June 25, 1923.

Rehearing Denied October 1, 1923.

Appeal from Circuit Court, Jackson County.

Proceeding to add lands to Road Improvement District No. 2 of Jackson County. From an order of the county court, adding the lands to the district, H. C. Sanders and other objecting landowners appealed to the circuit court, where the judgment adding the lands was affirmed, but it was found the assessment of benefits was void, and both the objecting landowners and R. D. Wilmans and others, commissioners of the district, appeal; the landowners being herein designated as appellants. Reversed and remanded for further proceedings.

Boyce & Mack and John W. & Jos. M. Stayton, all of Newport, Thos. B. Pryor, of Ft. Smith, H. L. Ponder, of Walnut Ridge, and Thos. S. Buzbee, Geo. B. Pugh, and H. T. Harrison, all of Little Rock, for appellants.

Rose, Hemingway, Cantrell & Loughborough, of Little Rock, and Gustave Jones, of Newport, for appellees.

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 50 per centum of the amount as returned by the assessors. 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, §§ 5426-5428) 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 30 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, when found necessary, and authority to the county court to contribute funds to assist in the construction of the improvement. The statute also contained provisions prohibiting damage to the improvement, and certain other particulars with regard to maintenance of the road and noninterference therewith.

It is the contention of counsel for appellants that the effect of the special statute was to convert the district into a separate and distinct entity from its original status as a creation under the general statute, and that this took the district out of the operation of the general statute altogether, and particularly with reference to the section of the original statute which authorized the taking in of additional territory. We cannot agree with counsel in this respect. The new statute recognizes the existence of the district as an entity already lawfully created, and the statute does not attempt to change the organization, but treats it as an existing entity, and removes certain restrictions upon its operations, and enlarges its powers in other respects. The effect of this statute is not to repeal, either expressly or impliedly, any portion of the general statute in the operation of this district, except to the extent that it may be found in conflict with the provisions of the new statute. There is nothing in the new statute relating to the powers of the district to take in additional territory, and there is no provision in the statute which is in conflict with the section of the general statute which authorizes the incorporation of new territory into the district.

It is next contended that the section of the general statute authorizing the incorporation of additional territory is void, for the reason that the owners of property in the territory to be added have no opportunity to be heard on the question of the organization of the district. This contention is unsound for the reason that there is no constitutional requirement that the consent of the owners of property must be obtained to the formation of an improvement district outside of a municipality. The only provision in our Constitution in this respect relates to the formation of improvement districts wholly within cities and towns. This court has, at least inferentially, treated this particular section of the general statute as valid.

It is also contended by counsel for appellants that the organization of the district is absolutely void on account of a variance between the petition of property owners and the plats accompanying the same with reference to the designation of boundaries, and that for this reason there cannot be an annexation of additional territory. Counsel for appellees contended below that appellants, as owners of property in the territory to be added, could not attack the validity of the original organization, and the trial court sustained the contention of appellees on this point. The...