Summers v. Cole

• Court: Arkansas Supreme Court
• Writing for the Court: MCCULLOCH, C. J.
• Citation: Summers v. Cole, 223 S.W. 721, 144 Ark. 494 (Ark. 1920)
• Decision Date: 21 June 1920
• Docket Number: 61
• Parties: SUMMERS v. COLE

223 S.W. 721

144 Ark. 494

SUMMERS v. COLE

No. 61

Supreme Court of Arkansas

June 21, 1920

Appeal from Faulkner Chancery Court; Jordan Sellers, Chancellor affirmed.

Decree affirmed. Motion to modify overruled.

George F. Hartje, for appellant.

Section 6 of act No. 82, Acts 1920, is void, as it is contradictory to the terms of section 4 of the same act, and because it provides for an arbitrary and unjust assessment on the property of appellant. 125 Ark. 422; 130 Id. 410. The commissioners are attempting to exceed their authority.

R. W Robins, for appellees.

1. There is no contradiction between § 4, act 82, Acts 1920, and § 6 of said act. When read together, they provide a simple and effective scheme for paying the cost of a road the Legislature found to be necessary. 22 Ark. 369; 28 Id. 200; 30 Id. 135; 38 Id. 205; 89 Id. 378. The intention of the Legislature should be given effect. 116 Id. 538. Similar acts have been approved by this court. 134 Ark. 447.

2. There is no provision in the Constitution requiring the Legislature to limit the cost of an improvement district. See cases in 134 Ark. 30; 136 Id. 524; Brenson v Bush, U. S.Ct. Adv. Op. No. 5, p. 131. The courts presume acts of the Legislature to be valid unless shown clearly to be unconstitutional. 12 Wheat. 213; 99 U.S. 700. All doubts are resolved in favor of the constitutionality of an act. 99 Ark. 1; 102 Id. 166.

3. A mere general allegation that assessments are arbitrary and excessive is not sufficient. 98 Ark. 113. But here the increase is neither arbitrary nor excessive. The cost of everything has gone up and courts take judicial knowledge of the increased cost of labor, materials, etc. 142 Ia. 658; 5 Ga.App. 402; 183 Mo.App. 608.

MCCULLOCH C. J. HART, J. and Mr. Justice SMITH, dissenting.

OPINION

MCCULLOCH, C. J.

The General Assembly at the regular session of 1919 (Special Road Acts, vol. 1, p. 374), enacted a statute creating a road improvement district in Faulkner County, designated as the Damascus Road District of Faulkner County. The statute described the district and the road to be improved, and assessed the benefits on the land in the district by zones according to distance from the road to be constructed. The statute divided the district into zones and assessed the benefits at a percentage of the value of the land according to the assessment for State and county taxation purposes. The benefits on land in zone 1, which is nearest to the road, were assessed at 90 per centum of the value according to said assessment for State and county purposes, and the assessments in other zones were diminished according to distance from the road. It is provided in the statute that the county surveyor should prepare and file in the office of the county clerk a certificate "showing in appropriate manner the different zones of the land situated therein as above set forth and showing the government subdivisions and any recorded plats of land located outside of the city of Conway and railroad, telegraph and telephone lines and rights-of-way," etc., and that the county clerk should within ten days after the filing of the plat by the surveyor "proceed to prepare at once in a well-bound book provided for that purpose an assessment list showing the name of the owner of each tract of land as shown by the last assessment of real estate on file in his office and the betterment accruing to each tract of land as herein ascertained and declared, and said assessment list shall be the assessment of said district, and the taxes levied as hereinbefore provided shall be computed thereon."

The General Assembly at the special session in January, 1920, enacted another statute amending the original, and the two sections which relate to the present controversy are as follows:

"Section 4. The assessment for all of the above mentioned road districts and also the assessments for Road Improvement District Number Five of Faulkner County (except assessments on which appeals have heretofore been filed in the Faulkner Chancery Court, and except the assessments mentioned in section I of this act), as shown by the assessment books for said districts. respectively heretofore prepared by the county clerk of Faulkner County and now on file in his office, are hereby approved and confirmed, same being found and hereby declared to be fair, just and equitable; provided, that the county clerk of said county may at any time correct any incomplete or incorrect description of any real estate on any of said assessment books."

"Section 6. It is hereby declared and ascertained that the lands and real property embraced in each of the above named districts, respectively, will be benefited in an amount equal to fifty per cent. in excess of the cost of the construction of the road authorized by the act creating each of said districts, respectively, along the general route of the road designated in the above mentioned acts creating said districts, respectively, and that the assessments for said districts as shown by said assessment books, respectively, provide a just and equitable basis for apportioning the cost of said improvements, respectively, against the various tracts and parcels of land and real property in each of said districts, respectively. And, should assessments for any of said districts with interest thereon as herein provided for, be found to be insufficient to defray the cost of the said improvement within the district, including necessary expenses of said district and interest on all obligations of said district, the county court shall make an order levying such additional portion of or rate upon the said original assessment, to be collected in the manner provided in the act of the General Assembly creating said district for the collection of taxes for such district, as will be necessary to pay any balance of the cost of said improvement including necessary expenses of such district and interest on its obligations."

Appellant, the owner of real property in the district, instituted this action to restrain the commissioners of the district from proceeding toward the issuance of bonds and the construction of the improvement, and he alleged in his complaint that the assessment list, as prepared and filed by the county clerk in accordance with the provisions of the original statute, showed that the benefits to the lands amounted to the sum of $ 273,492.93, but that the commissioners were about to issue bonds in the sum of $ 350,000 to construct the road, which it is alleged would cost that sum.

The contention is that section 4 of the statute as set out above, constitutes a legislative assessment by confirming the list as filed by the clerk and that the cost of construction and the amount of the bond issue can not exceed the total amount of benefits shown by that list. It is argued that the two sections set forth above are contradictory, and that unless section 4 controls as the legislative assessment of benefits the statute should be held to be void on account of the contradiction between the two sections. Our conclusion is that the contention of appellant is not correct, and that the two sections of the statute should be considered together for the purpose of construing their effect.

The assessment list referred to in section 4 was made pursuant to the directions of the original statute, and, if nothing else should be considered but the language of section 4 as amended, it should be construed to mean merely a confirmation of the list prepared by the clerk as the proper assessment of benefits. Construing the language of the two sections literally, there is apparent conflict, but it is our duty to reconcile that conflict for the purpose of ascertaining the true legislative will, if we can do so without disregarding the plain meaning of the language used. We have often said that the intention of the lawmakers "is to be deduced from a view of the whole, and every part of a statute to be taken and compared together." McNair v. Williams, 28 Ark. 200; Ingle v. Batesville Grocery Co., 89 Ark. 378, 117 S.W. 241; West v. Cotton Belt Levee District No. 1, 116 Ark. 538, 173 S.W. 403.

Section 4 as amended provides that the assessment lists filed by the clerk "are hereby approved and confirmed, same being found and hereby declared to be fair, just and equitable;" but section 6 provides "that the lands and real property embraced in each of the above named districts, respectively, will be benefited in an amount equal to fifty per cent. in excess of the cost of construction of the road authorized by the act, * * * and that the assessments for said district as shown by said assessment books, respectively, provide a just and equitable basis for apportioning the cost of said improvements."

Section 6 not only declares in express terms that the total benefits shall be fifty per cent. in excess of the cost of construction, and that the assessment lists filed by the clerk shall be the basis of apportionment of the benefits but it also authorizes the levy of assessments up to the amount of the cost of the improvement "including necessary expenses of the district and interest on its obligations." It is clear from section 6 that the Legislature meant to authorize the levy of assessments of sufficient amount to pay for the construction of the improvement and other necessary expenses and the interest on bonds, not exceeding 150 per cent. of the actual cost of construction, and that the original assessment list as certified by the clerk is the assessment fixed at the percentage declared in the original statute to be the basis of apportionment. The maximum is fixed at 150 per centum, not of the total cost, including overhead expense and interest on bonds, but the actual cost of construction of the road. The...