Simpson v. Matthews

• Decision Date: 13 July 1931
• Docket Number: 109
• Citation: 40 S.W.2d 991,184 Ark. 213
• Parties: SIMPSON v. MATTHEWS
• Court: Arkansas Supreme Court

40 S.W.2d 991

184 Ark. 213

SIMPSON v. MATTHEWS

No. 109

Supreme Court of Arkansas

July 13, 1931

Appeal from Pulaski Circuit Court; Richard M. Mann, Judge; reversed.

Judgment reversed and cause remanded.

Tom F. Digby, for appellant.

Chas W. Mehaffy and Rose, Heminqway, Cantrell & Loughborough, for appellees.

HART C. J. SMITH, J., concurs; HUMPHREYS, J., dissents.

OPINION

HART, C. J.

This is an appeal from an order of the circuit court upholding the validity of a statute permitting adjoining landowners to form an improvement district and to condemn land adjacent to a State highway in order to construct a reservoir for the alleged protection thereof. No separate or particular statement of facts is necessary, for the reason that, on the consideration of the motion for a rehearing, the court has concluded that this case should be decided upon the single point whether the act is unconstitutional as being local or special act.

In construing article 5, § 25, of our Constitution, this court has uniformly held that the Legislature is the exclusive judge whether a provision by general law is possible under the provision of the Constitution to the effect that no special law shall be enacted in cases where a general law can be made applicable.

Amendment No. 14 was initiated by the people and adopted as a part of the Constitution at the general election in 1926. It reads as follows: "The General Assembly shall not pass any local or special act. This amendment shall not prohibit the repeal of local or special acts."

The Legislature of 1931 passed act No. 108, entitled, "An act to grant to county courts, in counties having a population of 75,000 or more, the right to condemn lands for the protection of public roads."

The preamble and so much of § 1 as we deem necessary for a proper consideration of the issue raised by the appeal are as follows:

"Whereas, in certain hilly or mountainous sections the rainfall is precipitated over State or public roads, thereby injuring the roads, and interfering with and endangering the use of them by the public, which precipitate flow of water could be controlled and regulated by the construction of suitable dams or reservoirs, which would protect the roads, and also the lower lands subject to such precipitate inundation; now therefore,

"Be it enacted by the General Assembly of the State of Arkansas:

"Section 1. Any five persons owning lands on or in the vicinity of a State highway or other public road on which the rainfall from the adjacent hills is precipitated so as to injure the road, or to interfere with its use by the public, may file a petition in the county court praying for an order condemning certain lands for a reservoir and authorizing the construction of a suitable dam, dams, or works, with the necessary reservoir or reservoirs, for impounding water to protect such road and lower lands from the precipitate flow of water thereon. The petition shall describe the road and lower lands to be protected, and shall be accompanied with plans and specifications for the proposed dams and reservoirs, with a description of the area to be flooded, and of lands to be condemned for such purpose," etc.

The remainder of § 1 and §§ 2, 3 and 4 relate to the method of procedure in the premises. Section 5 relates to the method of procedure in the premises. Section 5 provides that the act shall only apply to counties which now or hereafter may have a population of 75,000 inhabitants according to the last federal census.

It is manifest that, when the amendment prohibiting the passage of special acts by the Legislature is considered with the provision of the Constitution above referred to, it was intended that the action of the Legislature shall be subject to judicial review. We do not think that it was intended to do away with the classification of counties, cities and towns according to population or the topography of the country where such classification rests upon substantial differences in situation and needs. The amendment was intended to prevent arbitrary classification based on no reasonable relation between the subject-matter of the limitation and classification made. In determining whether a law was general or local, the Legislature might still make the classification where it was appropriate and germane to the subject and was based upon substantial differences which make one situation different from another. The classification of counties and municipalities is legitimate when population or other basis of classification bears a reasonable relation to the subject of the legislation, and the judgment of the Legislature in the matter should control unless the classification is arbitrary or is manifestly made for the purpose of evading the Constitution. If the judgment of the Legislature must control in all cases, the amendment could serve no purpose, and the people might just as well not have initiated and adopted it.

In State ex rel. Richards v. Hammer, 42 N.J.L. 435, the subject of statutory classification was thoroughly considered. The court said: "If it could be so sanctioned, then the constitutional restriction would be of no avail, as there are few objects that cannot be arbitrarily associated, if all that is requisite for the purpose of legislation is to designate them by some quality, no matter what that may be, which will so distinguish them as to mark them as a distinct class. But the true principle requires something more than a mere designation by such characteristics as will serve to classify, for the characteristics which thus serve as the basis of classification must be of such a nature as to mark the objects so designated as peculiarly requiring exclusive legislation. There must be substantial distinction, having a reference to the subject-matter of the proposed legislation, between the objects or places embraced in such legislation and the objects or places excluded. The marks of distinction on which the classification is founded must be such, in the nature of things, as will, in some reasonable degree at least, account for or justify the restriction of the legislation."

Again the subject was comprehensively discussed by Mr. Justice Mitchell for the Supreme Court of Minnesota in State ex rel. Douglas v. Ritt, 76 Minn. 531, 79 N.W. 535. The learned justice said: "We have been over the whole subject of classification so often,...