Sikes v. Douglas

• Court: Arkansas Supreme Court
• Writing for the Court: MCCULLOCH, C. J.
• Citation: Sikes v. Douglas, 227 S.W. 988, 147 Ark. 469 (Ark. 1921)
• Decision Date: 21 February 1921
• Docket Number: 183
• Parties: SIKES v. DOUGLAS

227 S.W. 988

147 Ark. 469

SIKES v. DOUGLAS

No. 183

Supreme Court of Arkansas

February 21, 1921

Appeal from Benton Chancery Court; Ben F. McMahan, Chancellor reversed.

Decree reversed and cause remanded in part and affirmed in part.

E. P Watson, W. W. Sikes and W. O. Young, for appellant.

1. Act No. 149 creating Road District No. 2, Acts 1919, p. 400, is unconstitutional and void. None except public roads can be improved under the powers given road improvement districts and these roads must be in existence at the time the district is created, and such roads must be well defined in the act or power given the commissioners to lay out the road and that by consent of the county court, and the facts alleged in the complaint entitle appellant to relief. The Legislature could not pass a special act laying out a road from Garfield to Brightwater. Const., art. 5, §§ 24-5.

2. The act does not describe the road specifically.

3. The proclamation of the Governor calling the special session did not specify that one of the purposes for which it was convened was to amend the special act, nor to ratify and validate the illegal acts of the commissioners.

4. The act takes from the county court jurisdiction over county roads and is void.

5. Notice to the landowners was not given as required by law and it was signed by proper authority. Page & Jones on Special Assessments, § 752. Nor did the notice specifically describe the tracts of plaintiff's lands that benefits had been assessed against. See section 11 of the act.

The commissioners did not, prior to September 30, 1919, provide by resolution and place of record a resolution that the assessments should be paid in consecutive annual installments and fix the per centum of benefits to be paid for the year 1920. Assessment statutes and proceedings thereunder must be strictly construed and followed. Page & Jones on Taxation, §§ 229, 776.

Plaintiff's lands were not assessed according to the benefits and is arbitrary and void. Page & Jones on Taxation by Special Assessments, §§ 665-7. The assessment is void. Ib., § 665. The contract for engineers' fees was exorbitant and void. Upon the facts alleged in his complaint, appellant was entitled to be heard upon the merits of the case and the chancellor erred in dismissing the complaint.

Duty, Duty & Nance and Tom Williams and McGill & McGill, Lee Seamster and Sam Peasley, for appellees.

1. The validity of these two improvement districts is settled in 218 S.W. 381. Act No. 28 validated and cured all defects and irregularities in the formation and organization of the districts attacked. The notice was sufficient. 103 Ark. 452. It was properly signed. 26 R. C. L. 346; 186 U.S. 458; 111 Id. 701; 201 Id. 245.

2. The suit was brought in time. 3 S.Ct. 863; 213 S.W. 733; Act 149, § 18. See, also, 218 S.W. 381; 130 U.S. 177; 265 Ill. 39; 26 R. C. L. 355 (§ 312); Ann. Cases 1916 A 707.

All other irregularities were cured by the validating act. 83 Ark. 344; Ib. 54; 98 Id. 113; 112 Id. 357. The remedy provided by the statute must be followed. 134 Ark. 292; 137 Id. 587; 220 S.W. 56. See, also, 139 Ark. 424; 224 S.W. 622. Appellant can not question the validity of the contract. 222 U.S. 251; 89 Ark. 522. The contract was entered into long before the passage of the curative act and all irregularities were validated. 217 S.W. 258; 134 Ark. 30. As to the manner of assessments the contention of appellant has been adversely decided against him. 125 Ark. 325.

The curative act amounted to a legislative determination that the assessment was fair. Appellant was given his day in court and his remedy was clear under the statute. 139 Ark. 277; 186 U. S. supra.

OPINION

MCCULLOCH, C. J.

Appellant is the owner of real estate in a road improvement district in Benton County, designated as Road Improvement District No. 2 of Benton County, created by a special statute enacted by the General Assembly of 1919, at the regular session (vol. 1, Road Acts 1919, p. 400) and he instituted this action in the chancery court of that county against the board of commissioners of the district, and against the engineer of the district and the tax collector, to restrain proceedings under the statute. He attacks the validity of the statute itself and also the regularity of the proceedings thereunder in assessing benefits and in the employment of the engineer.

This is one of the districts, the validity of which was assailed in the case of Easley v. Patterson, 142 Ark. 52, 218 S.W. 381, wherein we upheld the statute. Most of the points of attack made by appellant on the validity of the statute were determined adversely to his contention in that case. The complaint, to which the chancery court sustained a demurrer, contains twenty-six (26) paragraphs, each attacking the statute or proceedings thereunder on various grounds. Many of the points of attack are abandoned here by failure to argue them in the brief. We will discuss only those points not deemed to have been expressly determined in the former case cited above.

It is first contended that the statute is void because the road to be improved is not definitely described, and because it was not, as alleged, a public road at the time of the enactment of the statute. This point was decided against appellant's contention in Easley v. Patterson, supra.

The amendment enacted at the extraordinary session in January, 1920 (unpublished act No. 228), described the road as a public road beginning at a point in a certain section of land "where said road intersects the Eureka Springs-Seligman road and running in a general southwesterly direction through Garfield, Brightwater, Avoca, Rogers, Lowell and to the south county line" on the line between two described sections of land. The statute further provides that the improvement is to be made upon the described route or substantially so as to the same may be designated and determined by the board of commissioners of said road improvement district and the county court of Benton County, Arkansas, and upon the most practical route between the points designated."

This gives authority to the commissioners to adopt and follow substantially the route indicated and calls into action the judgment of the county court in approving it.

But it is alleged that there is no public road running in a southwesterly direction from Garfield to Brightwater; that the public road from Garfield runs in a westerly direction north of west from Garfield and connects with a public road at Elk Horn Tavern, north of Brightwater; and that the county court has not opened a public road running in a southwesterly direction from Garfield to Brightwater. It will be observed that the statute does not describe the specific direction of the road from Garfield to Brightwater nor any other section of the road, but it describes the general direction of the road from one terminus to the other. There may be deviations from the general direction which would not nullify the description. The commissioners are authorized, with the consent of the county court, to adopt the most practical route between the points designated. There is no allegation that the commissioners have, without the approval of the county court, adopted a route along which they are about to construct a road not opened as a public road. The contention of appellant on this point is therefore unfounded.

It is next contended that the assessment of benefits is void because proper notice was not given so as to afford property owners an opportunity to object thereto. Section 11 of the statute creating the district provides that, after the assessors shall have delivered to the president of the board of commissioners their report or list of assessments, "the president shall cause a notice to be published in a newspaper published in said county of Benton, for two weeks, describing the land assessed and calling on the landowners aggrieved by reason of the assessments to appear on a day therein named," etc.

It is alleged that the notice was signed by the president himself and the contention is that under the statute the notice should have been signed by the assessors--that the president was merely authorized...