Swepston v. Avery

• Decision Date: 03 May 1915
• Docket Number: 349
• Parties: SWEPSTON v. AVERY
• Court: Arkansas Supreme Court

177 S.W. 424

118 Ark. 294

SWEPSTON v. AVERY

No. 349

Supreme Court of Arkansas

May 3, 1915

Appeal from Crittenden Chancery Court; Charles D. Frierson Chancellor; reversed.

Decree reversed and cause remanded.

Brown & Anderson, for appellants.

1. Our Constitution confers exclusive jurisdiction as to taxes, roads and bridges, etc., upon the county court. Art 7, § 28, and Amend. No. 5, Kirby's Dig., § § 7227-8, 7273.

2. The act in question is unconstitutional and void, as an attempt to usurp the jurisdiction of the county court and vest it in a board created by the Legislature. It is also void because it lays off, practically, the whole county into one district and determines and declares in advance that all the real estate in the whole district (practically county) will be specially benefited. No particular improvement is provided for as in the Bridge oases. 89 Ark. 513; 50 Id. 117; 76 Id. 23; 103 Id. 529; 96 Id. 419; 84 Id. 555; 70 Id. 549.

3. The act cuts off all inquiry as to the matter of special benefits or betterments which are the only foundation for such local assessments. 50 Ark. 117.

4. The roads of an entire county are too numerous, diverse and remote to be included in one district. 89 Ark. 513.

Berry & Neely and T. K. Riddick, for appellees.

1. The act does not invade the jurisdiction of the country court. 104 Ark. 429. The Glover case (89 Ark. 513) does not determine this case. It has been modified by subsequent decisions. Here the entire county is not included and the board is not authorized to lay out or establish new roads. 96 Ark. 419, 104 Id. 429.

2. The Legislature is the final judge of whether property in the proposed district is benefited. 50 Ark. 117; 104 Id. 431; 96 Id. 419; 97 Id. 322; 108 Id. 419; 59 Id. 513. Absolute equality and uniformity in improvement districts is impossible.

3. Local assessments are not "taxes." 80 Ark 109; 81 Id. 562. The Legislature is the final judge of the limits of improvement districts and its conclusions can not be reviewed by the courts 89 Ark. 513; 87 Id. 8; 81 Id. 562; 108 Id. 419; 102 Id. 553.

4. The act does not violate any provision of our Constitution or that of the United States. 181 U.S. 324; 103 Ark. 526, and oases, supra; 172 U.S. 269.

OPINION

MCCULLOCH, C. J.

This is an action instituted by appellant in the chancery court of Crittenden County, attacking the validity of a road improvement district formed in that county by a special act passed by the General Assembly of 1913, the title of said act being "to create the Crittenden County Road Improvement District."^[*]

The first section provides that all of Crittenden County west of the center of the main channel of the Mississippi River except seven sections properly described, lying in the northwest corner of the county, is organized into an improvement district to be known as "Crittenden County Road Improvement District." The commissioners are named in the statute and it is declared that the board of commissioners and their successors shall constitute a body corporate under the style indicated above, with power to sue and be sued, etc., and that "the said commissioners shall be maintained in perpetual succession as a board of improvement for the preservation and maintenance of the highways herein contemplated." Section 2 of the act defines the purpose of the organization, as follows: "The said district is hereby organized for the purpose of improving the public highways within its territories, including the construction of such bridges as may be required in improving such highways, and the commissioners shall proceed to improve public roads within the district as now, or may hereafter be laid out, and such roads as the county court of Crittenden County may approve so as to connect all parts of the district with all other parts and with the county site. * * * The commissioners shall determine which roads shall be improved, and the order in which the improvement shall be made."

Section 3 provides that road work shall be performed by the residents under the general road laws of the State, or in lieu thereof to pay an annual commutation tax of $ 4. That section also provides that the road taxes levied and collected pursuant to Amendment No. 5 of the Constitution shall when collected be paid over to the secretary of the Crittenden County Road Improvement District for use in construction of the contemplated improvements.

Section 5 reads as follows: "It is ascertained and hereby declared that all real estate within said district, including bridges, railroads and tramroads, will be benefited by the improvement within said district more than the cost thereof apportioned according to the ratio which it bears to the county assessment of each piece of real property, bridges, railroad and tramroad within the district for this and the succeeding years, and the cost thereof is made a charge upon such property superior to all other mortgages and liens except liens for the ordinary taxes, and for improvement districts heretofore organized, but the sale of any such property in foreclosure of the lien of any improvement district or for ordinary taxes shall not release the same from the lien hereby created. The total cost of the improvement undertaken by the district shall not exceed 10 per centum of the assessed value of the real property, bridges, railroads and tramroads of the district; but the interest upon the money borrowed shall not be computed as part of the costs, and as the assessed value of such property in the district is increased, the power of the district to borrow money shall be continually increased, so that it shall always have the power to incur an indebtedness equal to 10 per centum of the assessed value of such property within the district."

Section 6 provides that "the commissioners shall report to the county court from time to time all improvements and loans of money that they may contemplate making, and all bond issues that they desire to make, and no work shall be done or money shall be borrowed without the approval of the county court." It is further provided in the section that it shall be the duty of the county court, if it approves the plan, "to levy a tax upon the property of the district sufficient to pay for said work, or such indebtedness, or said bonds as they may mature, not, however, to exceed three mills per annum on the assessed property value; but in computing the amount to be levied each year, the court may deduct the estimated amount to be derived from the proceeds of the road tax levied under Amendment No. 5 of the Constitution of the State of Arkansas hereinbefore referred to. Said tax is to be payable in annual installments, as provided in said order. The tax so levied shall be a lien on all the property in the district from the time the same is levied by the county court, and shall be entitled to preference over all demands, executions, encumbrances or liens whensoever created, and shall continue until such assessment with any penalty and costs that may accrue thereon shall have been paid."

A remedy is provided in subsequent sections for enforcement of the taxes by suit in the chancery court, similar to the statute with reference to the enforcement of improvement districts taxes in cities and towns.

Section 9 provides that "if the tax first levied shall prove insufficient to complete the improvement, the board shall report the amount of the deficiency to the county court, and the county court shall thereupon make another levy on the property previously assessed for a sum sufficient to complete the improvement, which shall be collected in the same manner as the first levy; provided, that the tax shall never exceed three mills per annum on the dollar of the assessed property value."

Section 12 authorizes the board of commissioners to borrow money and to issue negotiable bonds, if deemed best for the interest of the taxpayers.

Section 15 provides that "the district shall not cease to exist upon the completion of the improvement; but shall continue to exist for the purpose of preserving the same, and to this end the commissioners may from time to time apply to the county court for the levying of additional taxes" not to exceed three mills per annum on the dollar of assessed property.

Appellees are commissioners of the district, and an injunction against them is prayed, restraining them from proceeding, according to the terms of the statute, to award contracts for the construction of a certain viaduct leading to the wagon bridge over the Mississippi River, and to issue bonds.

The complaint sets forth allegations, and the proof in the case shows that the commissioners formed plans for the construction of improvements, consisting of certain roads and a viaduct leading from the bridge across the Mississippi River, to cost in the aggregate the sum of $ 600,000; and that the issuance of bonds was authorized in the sum of $ 385,000. The county court approved the plans for the construction of said improvements and the issuance of bonds and assessed an annual tax of three mills on the lands in the district, according to the assessed value thereof, for a period of thirty years or until said bonds and interest thereon shall be fully paid.

It is thus seen from the foregoing statement that the Legislature has attempted to create a road improvement district consisting of nearly the whole of Crittenden County--at least 95 per cent of the lands, including islands in the Mississippi River, said to be a portion of the county--and create a perpetual commission to improve the public highways and bridges in the district "as now or may hereafter be laid out," with authority to "determine which road shall be improved and the order in which the improvement...