Tarvin v. Road Improvement District No. 1 of Perry County

• Decision Date: 17 February 1919
• Docket Number: 119
• Citation: 209 S.W. 81,137 Ark. 354
• Parties: TARVIN v. ROAD IMPROVEMENT DISTRICT NO. 1 OF PERRY COUNTY
• Court: Arkansas Supreme Court

209 S.W. 81

137 Ark. 354

TARVIN v. ROAD IMPROVEMENT DISTRICT NO. 1 OF PERRY COUNTY

No. 119

Supreme Court of Arkansas

February 17, 1919

Appeal from Perry Circuit Court; Guy Fulk, Judge; affirmed.

Judgment affirmed.

W. P Strait, for appellants.

1. The contemplated improvements are not sufficiently described in the petition, map and specifications and the order of court is not definite enough. Acts of 1915, p. 1308, § 1 "A," "B," and § 7. The notice was not sufficient. 191 S.W. 9; 113 Ark. 193; 115 Id 88; 86 Id. 21; 97 Id. 341; 103 Id. 269; 116 Id. 167; 103 Id. 65; 90 Id. 29; 59 Id. 344; 60 Ark. L. R. 496.

Separate and distinct roads were improperly joined in one district. 30 Ark. 513.

2. There was erroneous or fraudulent estimate of cost. 191 S.W. 9; 118 Ark. 121; 115 Id. 88; 86 Id. 21; 97 Id. 341; 108 Id. 141; 103 Id. 269; 116 Id. 167; 105 Id. 65; 90 Id. 29.

3. There was no showing in the record that the court on its own motion or by petition of ten property holders as required by the Alexander road law or by any order of the State Highway Commission or its engineer for preliminary survey estimate of cost. 124 Ark. 234; 123 Id. 298.

4. The law must be strictly complied with or the whole proceeding is void. 103 Ark. 446; 124 Id. 234; 123 Id. 211; 389.

John L. Hill, J. H. Bowen and Rose, Hemingway, Cantrell & Loughborough, for appellee.

The petition and description were sufficient to give the court jurisdiction. Such roads can be embraced under a "single" road improvement district. 125 Ark. 388-329; 103 Id. 299; 112 Id. 254. The laterals are moderate in the amount of cost and plainly advantageous to the inhabitants of the district.

OPINION

HUMPHREYS, J.

On July 9, 1917, certain landowners in Perry County, Arkansas, presented a petition to the Perry County court, asking for the organization of Road Improvement District No. 1, under Act No. 338, Acts of the General Assembly, 1915, setting out in said petition the lands to be included in the district by section, township and range. The roads to be improved and constructed were described in the petition as follows: "Perry north, two miles; Perry east, four miles; Perry south to Perryville and from there to Aplin." The petition recited that a plat was attached, plainly indicating the boundaries of the district and showing the roads which were to be constructed and improved. The estimated cost of the improvement by the State Highway Engineer was also attached to the petition as an exhibit describing the road, or roads, to be improved as follows: "Perry by the way of Perryville to Aplin; Perry east along Rock Island railroad; Perry west to Adona; Perry north to county line." The estimated cost, including the overhead expenses, was $ 66,528.53. In this estimate of cost, the width of the road, the character of the material to be used and the total length of the road were set forth. The attached map of the proposed district was imposed on certain sections of land in township 5 north, ranges 16, 17 and 18 west; and certain sections in township 4 north, ranges 17, 18 and 19 west, according to the government survey of lands. The town of Aplin was laid on the north half of section 25, township 4 north, range 19 west; Perryville on the southeast quarter of section 9 and southwest quarter of section 10, township 4 north, range 17 west; Perry on the south half of section 27, township 5 north, range 17 west; and Adona on the northwest quarter of section 34, township 5 north, range 18 west. A white line was drawn from Aplin in a northeasterly direction through Perryville; thence, in a northerly direction from Perryville to the north line of the proposed district. A white line was also drawn from Adona in a southerly direction through Perry to a certain point in section 20, township 5 north, range 16 west. The lines drawn north and south and east and west through Perry, intersected near the center of the town. On the map appear the following words: "Map of Perry Co. Road Improvement Dist. No. 1." The State Highway Engineer's preliminary survey, the plat, plan, specifications and estimates of cost of said road improvement district were filed in the county court of Perry County before the petition was circulated to secure names of the owners of land in the district.

On the 3rd day of August, 1917, a day of the July term of court, and the day fixed by the court for the hearing of the petition for the organization of said improvement district, the cause was heard by the county court. It is recited in the order made on that day that "After due and lawful petition filed with the State Highway Department for preliminary survey, specifications, etc., said State Highway Department prepared said preliminary plans and they were duly filed in this court as required by law before any petitions were circulated. " As a result of that and other findings of the court, upon hearing, an order was made establishing road improvement district No. 1 of Perry County, in which order the road was described as follows: "From the town of Perry north two miles; from the town of Perry east four miles; from the town of Perry west six and one-half miles; from the town of Perry south to Perryville and from the town of Perryville to the town of Aplin."

From the order establishing the district, each appellant filed the necessary affidavit and appealed his cause to the circuit court. The causes were consolidated by consent and submitted to the circuit court upon the petition objections of appellants to the organization of the road improvement district, and testimony offered by appellants and appellees. At the close of the testimony, appellants requested certain findings of fact and declarations of law, which were refused by the court. Thereupon, the court rendered judgment affirming the judgment of the county court establishing the district, from which judgment an appeal has been prosecuted, under proper proceedings, to this court.

This cause was submitted to the circuit court at the February term, 1918, and was taken under advisement, and the final judgment from which this appeal was prosecuted, was rendered on July 19, 1918. On the 18th day of March, 1918, on the application of the commissioners of the district to the Perry County Court, an order was entered authorizing the commissioners to construct certain laterals to the roads not designated in the original petition, preliminary plans, specifications and estimates of cost. Appellants appeared there and opposed the construction of the laterals, and objected and excepted to the order of the county court authorizing them, and prayed an appeal to the circuit court from the order. We are unable to ascertain from the record that this latter appeal was consolidated with the appeal taken from the organization of the district, so the contention of counsel, that the order of the court establishing the laterals as a part of the district was without authority and contrary to law, is not properly before this court for adjudication. We understand that the only matters for adjudication on the appeal before us are matters pertaining to the validity of the organization of the district. Not being properly before us, we eliminate from our consideration the order establishing the laterals and pretermit an expression as to the validity of the order establishing them.

It is first insisted by appellant that the contemplated improvements are not sufficiently described in the petition, the map attached thereto or in the preliminary estimate of the cost of the improvement, for petitioners to know therefrom what roads, if any, were to be improved.

Section 1 (A) Act 338, Acts 1915, provides that a plat shall be filed with the petition "upon which the boundaries of the proposed district shall be plainly indicated showing the roads which it is intended to construct and improve as nearly as practicable." Before the petition can be circulated for signatures of property owners in the proposed district the State Highway Engineer, or his assistant, under instruction of the State Highway Commissioner, at the instance of the county judge or ten or more landowners in the proposed district, shall prepare and file in the county court preliminary plans, specifications and estimates of the cost of the roads to be constructed and improved, in the same manner as set out in section 7 of the same act. Section 7 of said act provides that the plans, specifications and estimates "shall show the starting point or points, the general directions of the roads to be constructed, their termini, etc." There is no requirement in the law that the petition proper shall embrace an accurate or definite description of the proposed road, or roads, to be constructed or improved. The map filed with the petition and the plans, specifications and estimates of cost filed in the county court before the petition can be circulated, is for the purpose of apprising the petitioners of the particular improvement to be made, its character and estimated cost. The map or plans, specifications and estimate of costs must be regarded as a part of the petition for the purpose of determining whether the proposed improvement is certainly and definitely described. This court said in the case of Cox v. Road Improvement Dist. No. 8 of Lonoke County, 118 Ark. 119, in which this act was under construction, "All of the cases under our improvement district law treat the petition as jurisdictional, and hold that its recitals must meet the requirements of the statute. All of these decisions make it plain that there must be no uncertainty about the improvement proposed." In the Cox case, the petition was to improve "some of the public roads within its limits." This court held that description too indefinite to meet the requirements of ...