Tims v. Mack

• Court: Arkansas Supreme Court
• Writing for the Court: MCCULLOCH, C. J.
• Citation: Tims v. Mack, 227 S.W. 393, 147 Ark. 112 (Ark. 1921)
• Decision Date: 24 January 1921
• Docket Number: 114
• Parties: TIMS v. MACK.. MASON v. MACK.

227 S.W. 393

147 Ark. 112

TIMS v. MACK..

MASON v. MACK.

No. 114

Supreme Court of Arkansas

January 24, 1921

Appeal from Jackson Chancery Court; L. F. Reeder, Chancellor affirmed.

Appeal from Jackson Circuit Court; D. H. Coleman, Judge; affirmed.

Judgment affirmed.

Mehaffy Donham & Mehaffy, John W. Newman and Gustave Jones, for appellants.

1. Acts 82 and 55, Acts 1919, are arbitrary and void, and act 266 is invalid for reasons set forth in act 82. Act 82 was passed without notice in violation of § 26, article 5, Constitution 1874. It is invalid because it attempts to create more than one district and is in violation of the Fourteenth Amendment to United States Constitution. The assessment of benefits is largely in excess of the assessment against other property similarly located. The assessment as a whole is fictitious, arbitrary and unjust. The findings of the chancellor are against the clear preponderance of the testimony, and the assessment is arbitrary and void. Act 55 is void also, because it denies the right of appeal. 30 Ark 181. See, also, 70 Ark. 83; 86 Id. 184; 78 Id. 364; 97 Id. 116; 110 Id. 479.

2. The county court erred in upholding act No. 82, Acts 1919. 214 S.W. 23; 125 Id. 325; 216 S.W. 690; 83 Ark. 54. The act violates the United States Constitution, Fourteenth Amendment. 239 U.S. 478. The action of the commissioners in locating the road was arbitrary, unreasonable and void. 217 S.W. 258. The court erred in finding act 55 void and in granting the injunction.

G. A. Hillhouse and Rose, Hemingway, Cantrell Loughborough, for appellees.

1. The chancery case involves the same points that were disposed of by this court in 139 Ark. 524 and is settled by it. See also 140 Ark. 474, which is equally conclusive.

2. An improvement district is not void because lands will be benefited beyond its borders. 125 Ark. 325; 133 Id. 380; 131 Id. 59. Two courts have passed on the question here as to the routes selected, and their findings should not be disturbed, as both the law and the evidence sustain the findings below.

MCCULLOCH, C. J. HART, J., dissenting.

OPINION

MCCULLOCH, C. J.

These two cases, which have been briefed together for convenience, involve an attack on a special statute ratifying and confirming assessments of benefits to the lands in a road district in Jackson County, designated as "Arkansas and Missouri Highway Districts in Jackson County," and also involving an attack on the action of the board of commissioners of said district in selecting the route of the road to be improved.

The district was created by Act No. 82, at the regular session of the General Assembly of 1919, vol. 1, Road Acts, p. 134. Section 4 of that statute authorizes the commissioners of the district to select a route for the highway leading across the county "and joining with the highway selected by the commissioners of the adjacent counties" and it also provides for the laying out of the selected roads by the county court. Section 5 provides that when the route has been selected the commissioners "shall, with the aid of the highway engineer or of an engineer employed by them, prepare plans, specifications and estimates of cost of the road intended to be constructed, and shall file these with the county clerk of their respective counties." The statute provides for an assessment of benefits by assessors appointed by the commissioners.

The route of the road was selected by the commissioners, and plans and specifications for the construction of the road along that route were filed with the county clerk. Assessments of benefits were made by the assessors, and a list thereof was filed in the office of the clerk, and the General Assembly at the special session of 1920 enacted a special statute, which was approved February 5, 1920, designated as Act No. 55, ratifying and confirming said assessment of benefits then on file in the office of the county clerk of Jackson County.

Appellants in the first case mentioned in the caption of this opinion are the owners of real property in the district, and they instituted the action in the chancery court of Jackson County to restrain the commissioners of the district from enforcing the assessments on the ground that the same are void, and that Act No. 55 attempting to ratify and confirm the same is void. The appellants in the other case, who are also owners of property in the district, made themselves parties to the proceedings in the county court and appealed from the order of the county court approving the plans and specifications, and on said appeal being heard in the circuit court said plans and specifications were there approved, and an appeal has been prosecuted to this court.

Appellants attempt to establish the invalidity of act No. 55 ratifying the assessments by showing that the list of assessments was filed by the commissioners in the office of the county clerk of Jackson County on the day that the bill for the enactment of the statute was introduced in the General Assembly, and that it was physically impossible for the members of the General Assembly to have made inquiry and ascertained the facts with respect to the correctness of the assessments before enacting the statute. We have held in a long line of cases, beginning with Sudberry v. Graves, 83 Ark. 344, 103 S.W. 728, that the lawmakers in providing for assessments upon land for the construction of local improvements "may act directly, determining the area to be benefited, and the rate of apportionment, or may levy assessments directly, fixing the amounts and determining the benefits to accrue, and that the determination of the Legislature in these matters will be respected by the courts," and that the ratification by the Legislature of assessments already made is tantamount to an assessment made by the Legislature itself. We held in those cases that the legislative determination was not subject to review by the courts for mistakes of judgment, but that only the arbitrary abuse of the power would be controlled. St. L. S.W. Ry. Co. v. Board of Directors, 81 Ark. 562, 99 S.W. 843; Sudberry v. Graves, supra; Shibley v. Fort Smith & Van Buren District, 96 Ark. 410, 132 S.W. 444; Moore v. Board of Directors, 98 Ark. 113, 135 S.W. 819; Salmon v. Board of Directors, 100 Ark. 366, 140 S.W. 585; St. L., I. M. & S. Ry. Co. v. Board of Directors, 103 Ark. 127, 145 S.W. 892; Board of Directors v. Dunbar, 107 Ark. 285; Davies v. Chicot County Drainage District, 112 Ark. 357, 166 S.W. 170.

The theory on which these decisions is based is that the lawmakers have in their own way ascertained and determined the fact, and their decision is conclusive upon the courts, unless it appears that such decision is, on its face, arbitrary and demonstrably erroneous. The Legislature may adopt its own method of ascertaining the facts. It is not bound by any fixed rules of evidence in conducting the inquiry. It can not therefore be said that it was physically impossible for the Legislature to have inquired into the facts in regard to the correctness of the assessment of benefits made by the board of assessors. It is not proper for us to make inquiry into the method by which the members of the Legislature satisfied themselves as to the correctness of these assessments, but we conclusively presume that they did make such inquiry. Appellants attempted to show that the only source of information available to the members of the Legislature was a telegram to the member from Jackson County who introduced the bill, informing him that the list of assessments had been filed, but it is not competent to impeach the proceedings of the General Assembly by such testimony, for, as before stated, we will indulge the presumption that they obtained such information as was necessary in order for them to determine the question of the correctness of the assessments. We are of the opinion therefore that the chancery court was correct in refusing to declare the statute invalid.

In the other case there is, as before stated, involved the question of approval of the plans of the board of commissioners and the selection of the route of the road. This was heard in the circuit court on oral testimony; and, as we review only for errors in a law case, the question here comes down to the legal sufficiency of the evidence to sustain the finding of...