Shibley v. Fort Smith & Van Buren District

• Citation: 132 S.W. 444,96 Ark. 410
• Parties: SHIBLEY v. FORT SMITH & VAN BUREN DISTRICT . STARBIRD v. FORT SMITH & VAN BUREN DISTRICT. CHASTAIN v. FORT SMITH & VAN BUREN DISTRICT. SHIBLEY v. FORT SMITH & VAN BUREN DISTRICT
• Decision Date: 31 October 1910
• Court: Supreme Court of Arkansas

132 S.W. 444

96 Ark. 410

SHIBLEY v. FORT SMITH & VAN BUREN DISTRICT .

STARBIRD v. FORT SMITH & VAN BUREN DISTRICT.

CHASTAIN v. FORT SMITH & VAN BUREN DISTRICT.

SHIBLEY v. FORT SMITH & VAN BUREN DISTRICT

Supreme Court of Arkansas

October 31, 1910

First case on appeal from Sebastian Chancery Court; the second case from Crawford Chancery Court; J. Virgil Bourland, Chancellor in first two cases; third and fourth cases on appeal from Crawford Chancery Court; Jeremiah G. Wallace, Chancellor, in last two cases, on exchange of circuits; affirmed.

Decree affirmed.

Mehaffy & Williams, Carmichael, Brooks & Powers, Sam R. Chew, C. A Starbird and J. E. London, for appellants.

1. The act is repugnant to section 28, art. 7, of the Constitution which confers exclusive original jurisdiction upon the county courts in all matters of bridges and other internal improvements. 89 Ark. 513; 48 Ark. 370; 57 Ark. 555; 60 Id. 95; 4 Words & Phrases, p. 3877.

2. Local assessments must be uniform and apply alike to all property similarly situated. 48 Ark. 370; 48 Id 251; 172 U.S. 269; 2 Ark. 289, 296; 57 Id. 554-9.

3. The Legislature can not create districts which could lend their aid to railways and street car companies. Art. 12, § 5, Const.; 172 U.S. 269. Taxation in excess of special benefits is taking property without due process of law. 172 U.S. 269; 71 Am. St. 884; 45 L. R. A. 291; 68 Am. St. 717.

4. Liens can not be created upon homesteads. Art. 9, § 3, Const.; 65 Ark. 503; 21 Id. 41.

5. The question of a majority in value is jurisdictional. 59 Ark. 358; 50 Id. 116; 59 Cal. 206; 117 U.S. 683-9 (Law. Ed.); 168 U.S. 236 (Law. Ed.) 451; 68 F. 961; 2 Page & Jones on Tax., § 781.

6. The finding of the commission is not conclusive. 71 Ark. 556.

7. The act violates section 1, article 16, of the Constitution. Gray on Lim. of Tax. Power, 230; 4 S.W. 330; 3 Am. Rep. 615; 8 Id. 255; 69 Pa.St. 352.

8. A bridge can not be made the subject of a local improvement to be paid for by local assessments, as it is a matter of general benefit to the public. 74 Md. 116; 39 N.J.L. 656; 85 Pa.St. 163.

9. Sebastian County's two districts are practically two counties, which can not be embraced in one improvement district.

Hill, Brizzolara & Fitzhugh, for appellee.

1. When the Legislature acts itself, its act is conclusive alike of the question of the necessity of the work and of the benefits against the property assessed, and it is not open to the court to review its action. 164 U.S. 112, 175; 170 Id. 304; 83 Ark. 54; 172 U.S. 269. A bridge across a navigable stream is a proper subject-matter of an improvement district. 1 Page & Jones on Special Assessments, §§ 359, 419; 170 U.S. 304; 68 Conn. 131; 64 Vt. 28; 50 Minn. 248; 103 Mass. 129; 104 Mass. 236; 6 Allen, 353.

2. The Legislature may create a district embracing two counties. 68 Conn. 131; 170 U.S. 304; 153 Mass. 566. It can also apportion the expense or cost. 153 Mass. 566; 178 Id. 213; 104 Id. 236; 103 Id. 129; 6 Allen 353; 166 Id. 347; 64 Vt. 28; 50 Minn. 248; 52 N.W. 858; 20 Minn. 74; 37 A. 158; 13 R. I. 50; 55 N.J.L. 258; 160 Ind. 533; 35 N.W. 545; 47 Id. 11; 43 Id. 946; 127 Ill. 581; 207 Id. 11; 1 Page & Jones, Taxation Assessment, § 61; 2 Id., § 664, 704; 125 U.S. 345; 83 Ark. 344; 15 Kan. 500; 69 Ark. 436; 205 U.S. 135.

3. Nonresident owners can legally sign the petition. 71 Ark. 556; 90 Id. 29.

4. A failure to provide for an appeal or that notice be given of meetings of the commission does not avoid the act. Kirby's Digest, § 6998; 49 Ark. 518; 214 U.S. 359; 86 Ark. 231; 209 U.S. 414; 210 Id. 373; 80 Ark. 462, 318.

5. The Legislature may make the action of the commission in finding that the petition was duly signed by a majority in value, etc., conclusive. 78 Ark. 432, 463; 72 Ark. 205; 84 Id. 390; 72 Ark. 432; 32 Id. 553; 40 Ia. 226; 37 Id. 78, 598; 62 Mich. 456; 1 Metc. (Ky.), 533; 122 Cal. 442; 130 Ind. 514; 108 Id. 443; 27 A. 66; 112 Ind. 361; 21 How. 539; 92 U.S. 484; 94 Id. 104.

6. The act is not repugnant to article 7, section 28, of the Constitution. 89 Ark. 513.

MCCULLOCH, C. J. BATTLE, J., not participating.

OPINION

MCCULLOCH, C. J.

The General Assembly of 1909 passed an act authorizing the construction and maintenance, through an organization in the nature of an improvement district, of a public bridge across the Arkansas River at Van Buren, Arkansas, where that river constitutes the boundary line between Sebastian and Crawford counties. The first section of the act, which sets forth the purposes of the organization, and prescribes the bounds of the district created, reads as follows (Acts, 1909, c. 119):

"Section 1. That Upper Township of Sebastian County and all of Crawford County, except the following townships, towit: Winfrey, Sand Point and Shepherd, be and the same is [are] hereby created and constituted a bridge district; and said district shall be known as the Fort Smith & Van Buren District, and shall be a public agency and a body politic and corporate under said name and style, and by that name may sue and be sued, plead and be impleaded, and have perpetual succession for the purposes hereinafter designated. The said district may have a common seal, and may make such bylaws and regulations from time to time as may be deemed proper, not inconsistent with this act or the laws of this State, for the purpose of carrying into effect the objects of its creation. And said district may appoint all officers and agents which it deems necessary and suitable for the conduct of the business of said corporation, and may do all other acts and things not inconsistent with the laws of this State which may be proper to carry into effect the purposes and objects of this act. For the purpose of convenience of description, Upper Township shall be described herein as the Sebastian Division of said district, and all of Crawford County except the townships hereinbefore named shall be described as the Crawford Division of said district."

Subsequent sections prescribe the manner of organization, etc., and authorize the construction of the bridge upon petition found to contain the signatures of a majority in value of the owners of real property in the district. It also provides for levying and enforcing the collection of assessments on property in the district benefited by the improvement to defray the cost of constructing and maintaining the bridge. There are other provisions of the act which will be mentioned later in this opinion.

A petition asking for the improvement was duly filed with the commissioners of the district, which was found to contain a majority in value of the owners of the real property, and the commissioners were proceeding to form plans and let a contract for the construction of the bridge, and to levy assessments on the property benefited, when several actions were instituted in the chancery courts of Sebastian and Crawford counties by owners of property in those counties to restrain them from doing so. The complaint in each case was dismissed for want of equity, and the several plaintiffs appealed to this court. The validity of the statute is attacked on several points, and each of the cases will be disposed of in this opinion.

The first point of attack to be noticed is that the act is repugnant to section 28 of article 7 of the Constitution which confers upon county courts "exclusive original jurisdiction in all matters relating to county taxes, roads, bridges, ferries * * * and in every other case that may be necessary to the internal improvement and local concerns of the respective counties." In support of this contention, the case of Road Improvement District No. 1 v. Glover, 89 Ark. 513, 117 S.W. 544, is relied on, wherein it was held that "counties can not be organized into districts for building, repairing and maintaining roads without usurping the exclusive jurisdiction of roads vested in the county court by the Constitution," and that "districts can not be formed or authorized to lay out and establish new public roads, and impose upon the county court the duty to maintain them." It was not held that the Constitution withholds from the Legislature the power to authorize the construction, as local improvements, of new roads to be paid for by assessments on property to be benefited, nor is there a justifiable inference to be drawn from the decision that the court should hold that the Legislature can not authorize the construction of a bridge as a local improvement. The reason given by the court for the ruling was that to put the whole county into a road improvement district would be to substitute the commissioners or board of directors for the county court in the exercise of jurisdiction over the roads, and that it would be a usurpation of the county court's jurisdiction to authorize the construction of a new public road as a local improvement and thrust it upon that court for maintenance as a part of the public road system of the county. We perceive no sound reason why the Legislature may not, without trenching upon the jurisdiction of the county court, authorize the construction of new roads and bridges as local improvements. It does not impose upon the general public the burden of maintaining the improvement, nor does it fasten upon the county court the duty of supervising and maintaining the new road or bridge as a part of the internal affairs of the county. The statute now under consideration, by its express terms, is rescued from such an objection, for it provides that the county courts of said counties may take over and acquire the bridge after it had been constructed, and maintain it as a public highway, but that, in the event the county courts do not decide to take it over, then it shall be maintained by levying annual...