Sloan v. Lawrence County

• Decision Date: 29 April 1918
• Docket Number: 322
• Citation: 203 S.W. 260,134 Ark. 121
• Parties: SLOAN v. LAWRENCE COUNTY
• Court: Arkansas Supreme Court

203 S.W. 260

134 Ark. 121

SLOAN v. LAWRENCE COUNTY

No. 322

Supreme Court of Arkansas

April 29, 1918

Appeal from Lawrence Circuit Court; Dene H. Coleman, Judge affirmed.

Judgment affirmed.

Smith & Childers and Sloan & Sloan, for appellants.

1. The act of 1911, if constitutional, applies only to counties which have voted the three-mill county road tax under Amendment No. 5, Constitution. This tax had not been voted for, nor did the county court levy such a tax. Act 422, Acts 1911; Kirby's Dig., § 2328; 76 Ark. 303, 309.

2. The act (1911) is unconstitutional. It fails to provide for notice, or make provision for compensation and damages. 5 Enc. U.S. Rep. 789; 4 L. R. A. (N. S.) 169; 8 Cyc. 1126; 15 Id. 841; 37 Id. 65. The owner of lands is entitled to be heard and the right of appeal can not be taken away. Const., art. 7, § 33; 90 Ark. 219; 33 Id 508. The provision for compensation is inadequate, as it provides only for damages. 127 Mass. 50; 34 Am. Rep. 338; 24 Cal. 427; 10 A. & E. Enc. Law (2 ed.) 1132; 96 U.S. 635; 147 Id. 248, 260; 125 Id. 161; 43 So. 739; Kirby's Dig., § 2996.

3. If constitutional, the act of 1911 should be construed as in pari materia with the viewer's act of 1871. There must be notice; petition signed by majority, bond given for costs order appointing viewers and notice served on owners and viewers; oath of viewers, actual view and written report; hearing by court and order establishing road and providing for damages and compensation. Kirby's Dig., §§ 2992-3006, 2995, 2993-4, 2996-8-9, 3000-2. The failure to take the jurisdictional steps avoids the act.

4. The description of the road is void for uncertainty. 50 Minn. 558; 52 N.W. 961; 161 Mo. 513; 62 S.W. 462.

5. No authority to "widen" roads is conferred. The term "changes" refers to relocation of old roads and not to widening. 40 A. 938; 2 Id. 771; 8 Pa.St. 381; 5 Watts & S. 200; 55 A. 938; 110 P. 853.

6. Certiorari is the proper remedy. 15 Ark. 213; 29 Id. 173; Kirby's Digest, §§ 1315-16. The county court clearly exceeded its jurisdiction and there was no right of appeal. 68 Ark. 205, 209.

Ponder, Gibson & Ponder, for appellees.

1. The act is constitutional. Art. 7, § 28, Const.; 83 Ark. 236; 102 Id. 558. No notice is necessary where the Legislature or tribunal to whom power is given appropriates property to public use. Elliott Roads & Streets, § 200; 2 Lewis on Em. Dom., § 366; 21 N.Y. Ct. of App. 595; 65 Kan. 603; 70 P. 605; 5 Del.Ch. 524; 23 Ill. 202; 35 Miss. 17; 53 N.Y. 60; 22 L. R. A. (N. S.) 64 et seq. § 13, etc; 84 A. 727; 41 L. R. A. (N. S.) 1024, 1028.

2. The owner of land has right to a judicial hearing where land is taken for a public use. 130 Ind. 104; 29 N.E. 567; 16 L. R. A. 186; 79 A. 463; 52 S.E. 240; 36 P. 527; 51 S.E. 485; 9 R C. L., § 448.

3. The act provides a tribunal to hear his case within a reasonable time and give the right of appeal. This implies notice. 65 Kan. 603; 70 P. 605. See also, 5 Del. Chy. 524; 23 Ill. 202. Here actual notice was given and the owner was not deprived of any constitutional right. 151 U.S. 137; 2 L. R. A. 313; 52 S.E. 240; Elliott, Roads & St., § 198; Randolph, Em. Dom., § 338; 24 N.J.L. 662; 36 Id. 499; 5 Oh. St. 140; 2 Mich. 427; 75 Md. 94; 61 Ill. 52; Lewis, Em. Dom., § 368. Statutes are valid if no provision is made for notice, but actual notice is given.

4. Authority is given to widen the road in the authority to change. 126 Ark. 318. No prejudice is shown and appellants had an adequate remedy by appeal. The petition for certiorari was properly dismissed.

5. "Damages" includes compensation. 43 S.W. 786; 22 So. 629; 167 U.S. 548; 17 Kans. 58.

6. The act applies to Lawrence County. It is not limited to counties voting the road tax under Amendment No. 5. By the act of 1917, Acts 1917, p. 1647, the action of the court of Lawrence County was validated.

7. The description of the road is not void for uncertainty. No ambiguity or uncertainty appears in the act as the beginning and ending points are definitely described.

8. Authority is given to "widen" the road. 20 N.W. 401.

9. Certiorari does not lie as appellants had the right to appeal. 89 Ark. 604. On the whole case the act is constitutional and valid and applies to Lawrence County. The court had jurisdiction and the act was complied with. No illegality is shown and the petition was properly denied.

McCULLOCH, C. J. HART and SMITH, JJ., dissent.

OPINION

McCULLOCH, C. J.

Appellants are the owners of improved farm lands abutting on a certain public road in Lawrence County, and they brought up to the circuit court on certiorari for review an order of the county court of that county widening the said public road, which, of course, involved the taking of an additional strip of lands under private ownership. The circuit court denied the relief, and an appeal to this court has been prosecuted from the judgment of the circuit court.

The contention of counsel for appellants is that the order of the county court is void on its face for lack of jurisdiction in that it does not affirmatively appear that notice of the proceedings was given to owners of lands to be taken under the order of the court for the purpose of widening the road. On the other hand, it is contended by counsel for appellees that under the statute under which the proceedings were conducted notice was not required and that the statute in that respect is valid. The statute, pursuant to which the county court proceeded, reads as follows:

"Section 1. The county court shall have power to open new roads, to make such changes in old roads as they may deem necessary and proper, and to classify the roads and bridges in their respective counties for the purpose of this act, and when the changes shall be made or any new road opened, the same shall be located on section lines as nearly as may be, taking into consideration the convenience of the public travel, and first class roads hereafter established or opened shall not be less than fifty feet wide and an appropriate order of the county court shall be made and entered of record therefor. If the owner of the land over which any road shall hereafter be so laid out by the court shall refuse to give a right-of-way therefor, or to agree upon the damages therefor, then such owner shall have the right to present his claim to the county court duly verified for such damages as he may claim by reason of said road being laid out on his land and if he is not satisfied with the amount allowed him by the court he shall have the right of appeal as now provided by law from judgments of the county court; provided, however, no claim shall be presented for such damages after twelve months from the date of the order laying out or changing any road; provided, further, that when such order is made and entered of record laying out or changing any road the county court or the judge thereof shall have the right to enter upon the lands of such owner and proceed with the construction of such road. Provided further, all damages allowed under this act shall be paid out of any fund appropriated for roads and bridges and, if none such, then to be paid out of the general revenue fund of the county." Acts 1911, p. 364.

This statute amended section 7328 of Kirby's Digest, which was a section of the Act of May 8, 1899 (Acts 1899, p. 347), providing the method and procedure for working public roads where a road tax had been voted and levied pursuant to the terms of Amendment No. 3 of the Constitution. The last two sections of the Act of 1899, supra, provide, in substance, that the statute should be in effect or "adopted" when the road tax has been voted and levied, and that the statute should not be construed to repeal any other law on the subject. There were and are other statutes of the State on the subject of eminent domain containing numerous provisions with respect to the method of opening or changing the routes of public roads, and those statutes provide in substance for such orders to be made upon published notice and the appointment of viewers to determine the necessity for opening or changing the road. Kirby's Digest, § 2993, et seq.

The contention of counsel for appellant is that the act of 1911 only applies to counties in which the road tax has been voted and levied, and also that when applicable in those counties it must be read in connection with the other statutes on the subject so as to require notice of the proceedings. For reasons hereafter given we do not find it necessary to determine the effect of the act of 1911 upon other existing statutes on that subject so far as concerns the amendment or repeal of those statutes. If the statutes authorizing the county court, without notice, to order the taking of property for use as public roads is valid, we are of the opinion that the particular order now under review is not open to attack. In other words, if it is competent for the Legislature to authorize condemnation by order of the county court without notice to interested land owners, and even if the statute be construed to apply only to counties in which the road tax has been voted and levied, our conclusion is that the order of the county court in this instance is not void because of the omission of affirmative recitals to the effect that the road tax had been voted and levied in that case. We have held that, under the other condemnation statute providing for notice in proceedings to condemn for public roads, the giving of notice is essential to the exercise of jurisdiction by the county court. Howard v. State, 47 Ark. 431 2 S.W. 331; Lonoke County v. Carl Lee, 98 Ark. 345, 135 S.W. 833. But it would be a different thing to hold that an affirmative recital of the notice and levy of road tax is essential to the validity of an...