Thornton v. Road Imp. Dist. No. 1 of Clark County, Ark.

• Decision Date: 07 June 1923
• Docket Number: 6024.
• Citation: 291 F. 518
• Parties: THORNTON et al. v. ROAD IMP. DIST. NO. 1 OF CLARK COUNTY, ARK., et al.
• Court: U.S. Court of Appeals — Eighth Circuit

291 F. 518

THORNTON et al. v. ROAD IMP. DIST. NO. 1 OF CLARK COUNTY, ARK., et al.

No. 6024.

United States Court of Appeals, Eighth Circuit.

June 7, 1923

R. E Wiley, of Little Rock, Ark., for appellants.

J. W House, Jr., of Little Rock, Ark. (McMillan & McMillan, of Arkadelphia, Ark., and Coleman, Robinson & House, of Little Rock, Ark., on the brief), for appellees.

The plaintiffs here and below complain on several grounds of the decree of the District Court, whereby, after evidence and final hearing, it dismissed their suit on its merits. They were citizens and residents of Illinois who own lands in the state of Arkansas. There is a general statute of that state known as Public Act No. 338 of 1915, Crawford & Moses' Digest of Laws of Arkansas 1921, page 1452, which authorizes the incorporation of road districts for the construction and improvement of roads by means of assessments of benefits and the levy and collection of taxes on lands benefited thereby to pay for such construction or improvement. The governing body of such a district is a board of commissioners acting under and pursuant to orders of the county court. This statute also provides a board of assessors, whose duty it is to ascertain, determine, and report to the commissioners the lands benefited and the amount of the benefit to each tract resulting from such improvement. After such a district has been organized, after the estimated cost of improvement has been reported to the commissioners by their engineers, after the lands benefited have been ascertained and the benefit to each tract has been assessed by the assessors and adopted by the commissioners and the county court, this statute authorizes the levy of a tax upon the benefited lands sufficient to pay the estimated code of the improvement with 10 per cent. added for unforeseen contingencies. Crawford &amp Moses' Digest, § 5432.

Under this general law road improvement district No. 1 of Clark county, Ark., the chief defendant in this case, was organized to make about 86 miles of main roads radiating from Arkadelphia, the county seat, one north to the county line, one east, one west to Okolona and Antoine and the Little Missouri river, and one from Arkadelphia south through Gurdon to the south boundary of the county. There were about 250,000 acres of land in this district. The official estimated cost of the improvement was $460,000. The district was organized on or before February, 1919. The assessors of this road district determined the lands benefited, the amount of benefit to each tract in it, made their assessment of these benefits before February 13, 1919, and reported it to the board of commissioners on that day. The board of commissioners certified that the assessment so made by the assessors was made by the commissioners and filed it with the county clerk on February 17, 1919. That assessment has never been changed and a levy of taxes has been made upon it. About 800 acres of plaintiffs' lands were assessed and taxed under this assessment, and the plaintiffs make no complaint of this assessment or taxation.

Their complaint is that after that assessment was made, the district, its commissioners, assessors, and other officers made an assessment of alleged benefits of $23,380 on 10,274 acres of their land not within this original district, and threatened to and are now proceeding to collect taxes thereon based upon that assessment.

Their counsel contend in this court that the record here clearly demonstrates that this assessment was so grossly disproportionate between the property of the plaintiffs and other property similarly situated and the property of other owners which was not assessed at all, that it was so arbitrary and so confiscatory that it and the collection of the taxes founded upon it constitute the taking of the property of the plaintiffs without due process of law and deprive them of the equal protection of the law.

These facts pertinent to this contention are clearly established by the record:

In February, 1919, after the assessment on the lands then in the district was made by the board of assessors and the commissioners, a proposition was agitated and a bill was introduced into the Legislature of Arkansas to form a new road district to build the road from Okolona through Gurdon to Nix's Ferry, hereafter called the Nix Ferry Road, on account of which the assessment and taxes in controversy were subsequently made. This Nix Ferry Road extends from a point near Okolona on the Arkadelphia and Okolona Road east through Gurdon to Nix's Ferry. It is about 26 miles long. The west 15 miles of it are in the original district, the lands in which had been assessed for the main roads radiating from Arkadelphia. Some of the owners of the lands in that district perceived that if this new district was formed their lands along or near this Nix Ferry Road would be taxed for that road also. To prevent such a tax on their land and to impose the taxes for the entire cost of the 26 miles of the Nix Ferry Road on the lands east of the original district where the plaintiffs' 10,274 acres were situated, they succeeded in preventing the passage of the bill for the Nix Ferry Road district and procured the passage of Special Act 374 of 1919 of the Laws of Arkansas (Road Acts), which was approved March 26, 1919. By its terms that act ratified and confirmed the assessment of the lands in the original district, authorized and required the commissioners of that district to construct the Nix Ferry Road, added to the lands in the original district a strip of land 6 miles in width, 3 miles in width on each side of the line of the Nix Ferry Road extending from the east line of the original district east to Nix's Ferry, a distance of about 11 miles, and including 76,000 acres; and directed the assessors of the district to 'proceed as provided in said Act No. 338 of 1915 to make the assessments of benefits, and their assessments shall embrace all the property added to the said district by this act. The assessment shall be controlled and governed by the said Act No. 338 of the Acts of 1915.'

Section 15 of Public Act No. 338 provided that whenever the commissioners should find that other lands not within the boundaries of the district were benefited by the improvement made or sought to be made, they should instruct the assessors to assess the benefits accruing to such lands and should file a separate report in the county court setting up the lands so benefited together with the assessment of benefits made by the assessors for the district. On June 30, 1919, the commissioners of this district adopted a resolution to the effect that about 95,000 acres more, including a strip of land 2 miles wide on the south side of the strip added by Act No. 374, a similar strip on the north side of the latter strip and other lands, aggregating about 95,000 acres, were benefited by the Nix Ferry Road, and on July 7, 1919, they directed the assessors to assess the benefits thereto. On July 10, 1919, the assessors certified to the commissioners their assessment of the benefits to each of the tracts in the 171,000 acres in these two additions, and on July 12, 1919 the commissioners transmitted this assessment to the county court and filed therein their report that they had made this assessment made by the assessors their assessment of the benefits to the lands described therein.

On July 12, 1919, the county court designated July 31, 1919, as the day for a hearing by it on the commissioners' assessment of benefits upon the lands added to the district by Act No. 374 and upon their assessment of benefits to the lands added to the district by the resolution of the commissioners and also for a hearing on exceptions and objections to the inclusion of the added lands in the district. At the same time the court ordered its clerk to give notice of the filing of the commissioners' report of the addition of the 95,000 acres of land and to give notice of the filing of the assessments 'by two weeks' consecutive insertions in a publication having a general weekly circulation in Clark county,' and calling upon the owners of land affected to show cause why the boundaries of the district should not be extended as reported by the commissioners and to make any objections they had to the assessments at the hearing on July 31, 1919. Crawford & Moses' Digest, Sec. 5423. The order of the court containing the notice was published as directed, but the plaintiffs had no notice or knowledge of it, or of these additions of the lands to the original district, or of the assessments, and on July 31, 1919, the county court ordered the lands described in the commissioners' report added to the district and the assessments on the plaintiffs' land in these added lands approved and confirmed. Public Act No. 338 of 1915, Crawford & Moses, Sec. 3425, allows an owner of land to appeal from the judgment of the county court affirming an assessment within 10 days from the date of the judgment, but as the plaintiffs had no knowledge of the assessment or the judgment, they took no appeal.

The Legislature of Arkansas subsequently passed an act, which by its terms provided that all irregularities and errors in the proceedings to which reference has been made were cured, that all the lands described in the assessments were benefited, and that all the assessments and proceedings were ratified and confirmed. Act No. 358 of the Laws of the Special Session of the Legislature of 1920.

Gurdon is the most important town on the line of the Nix Ferry Road. It is about 4 miles west of the east line of the original district, the lands in which were assessed for the main roads before the construction of the Nix Ferry Road was authorized and the latter road extends from the Okolona Road, which...