Thompson v. Trice

• Decision Date: 12 July 1920
• Docket Number: 122
• Citation: 223 S.W. 367,145 Ark. 143
• Parties: THOMPSON v. TRICE
• Court: Arkansas Supreme Court

223 S.W. 367

145 Ark. 143

THOMPSON v. TRICE

No. 122

Supreme Court of Arkansas

July 12, 1920

Appeal from Chicot Chancery Court; E. G. Hammock, Chancellor reversed.

Decree reversed.

Coleman Robinson & House and John Baxter, for appellants.

1. There is no uncertainty in the description of the boundaries of the district. 214 S.W. 23.

2. There is no delegation of legislative powers in the act. 120 Ark. 277; 72 Id. 195. See, also, 83 Id 591; 210 Id. 281; 6 R. C. L., § 167; 133 Ark 380.

3. The act does not delegate judicial powers to an individual. The whole attack on the act is merely technical and the demurrer should have been sustained.

Phil McNemer, for appellees.

1. The act does not sufficiently designate the boundaries of the district.

2. Sections 36 and 37 of the act attempt to delegate legislative powers and provides for no notice to be given. 133 Ark. 380. The act is unconstitutional and void, and the chancellor was correct in so holding.

OPINION

HUMPHREYS, J.

Appellee, an owner of real estate in the Dermott-Collins Road Improvement District in Chicot and Drew counties, instituted suit against appellants in the Chicot Chancery Court to enjoin the commissioners of said district, who are the appellants herein, from proceeding under the act creating the district, alleging as ground the invalidity of the district.

The validity of the district is assailed on the grounds, first, that the act does not sufficiently define the boundaries so as to indicate with any degree of certainty the lands included therein; second, that no provision was made in the act creating the district for assessing lands lying in Desha County, within five miles east and west of a certain line set forth in section 1 of said act; third, that the act creating the district attempts a delegation of legislative power; and, fourth, that said act delegates judicial powers to an individual. Appellee filed a demurrer to the complaint, which was overruled, and, upon refusal to plead further, a decree was rendered enjoining appellants from proceeding under the act creating the district. From that decree, an appeal has been duly prosecuted to this court.

The district was created by special act No. 240 of the special session of the General Assembly, called on the 26th day of January, 1920. The boundaries of the district are designated in section 1 of said act, which, in so far as it relates to the boundaries, is as follows:

"That all real property and lands, including city and town lots railroad rights-of-way, tramroads, telephone and telegraph lines lying in Chicot and Drew counties, Arkansas, west of a straight line running north and south along the eastern border of section 20, township 13 south, range 3 west, and lying east of a straight line running north and south along the west corporation line of the town of Collins, and situated within five miles of any part of the road hereinafter described to be improved, are especially benefited by the improvement and are formed into an improvement district for the purpose of improving said road. The smallest subdivision of real property and lands as described by the United States government survey, part of which are situated within the limits above described and within five miles of said road shall be included in the district." A description is sufficient which embraces the lands to be benefited by boundaries certain of ascertainment. It will be observed from reading the description in said section that all the lands in Chicot and Drew counties west of a definite line and east of a definite line set out within five miles of the road to be improved are embraced within the district. Appellee has not pointed out any defect in the description of the boundaries which renders them uncertain or indefinite, but has contented himself with a general statement that they are fatally defective. Being unable to...