Van Hook v. Wallace

• Decision Date: 05 April 1920
• Docket Number: 303
• Citation: 220 S.W. 37,143 Ark. 203
• Parties: VAN HOOK v. WALLACE
• Court: Arkansas Supreme Court

220 S.W. 37

143 Ark. 203

VAN HOOK v. WALLACE

No. 303

Supreme Court of Arkansas

April 5, 1920

Appeal from Union Chancery Court; J. M. Barker, Chancellor affirmed.

Decree affirmed.

Mahoney & Mahoney, Neill C. Marsh and Mehaffy, Donham & Mehaffy, for appellant.

1. The only question is, does the complaint state a cause of action? Our contention is that it does, and that the demurrer should have been overruled. It is not right, or lawful, to have the taxes exceed the benefits. The act, No. 127, Acts 1919, is unconstitutional and void, and is contrary to public policy. The act does not include all the lands in the county, but, if so, it violates § 28, art. 7, of our Constitution and usurps the jurisdiction of the county court; the assessments are excessive and arbitrary.

W. E Patterson, for appellees.

The act is valid and constitutional and the complaint does not state a cause of action. 134 Ark. 30; 213 S.W. 162; 127 Ark. 378 215 S.W. 255; 125 Ark. 425; Id. 325; 130 Id. 507; Johns v. Road Impt., 142 Ark. 73; 213 S.W 755; 15 Cyc. 423; 49 Ark. 242; 120 Id. 277.

MCCULLOCH C. J. WOOD and HART, JJ., dissent.

OPINION

MCCULLOCH, C. J.

The General Assembly of 1919, at the regular session, enacted a statute (Act No. 127 of 1919) creating four separate road improvement districts, the combined territory of all of them comprising the whole of Union County, for the purpose of improving certain roads in the respective districts and maintaining the same, the territory of each district and the road or roads therein to be improved being fully described in the statute. Separate commissioners were named for each of the districts and assessments authorized to be levied on the benefits to the lands in each district accruing by reason of the respective improvements. Appellant owns lands in one of the districts and instituted this action challenging the validity of the statute and the proceedings thereunder and praying that the commissioners be enjoined from proceeding with the work of constructing the improvement, issuing bonds and levying assessments.

The points of attack made in the complaint are very numerous and cover nearly every section of the statute, but we will treat each of the attacks which are not relied on in the briefs as being abandoned and will dispose of only the questions which appear to be relied on by counsel as sustaining their attack on the validity of the statute.

It is contended, in the first place, that the power conferred by the statute constitutes an encroachment on the jurisdiction of the county court because all of the real estate in the county is embraced. Learned counsel argue the question as if the turning point in the case is whether or not the improvement of all the roads described in the statute constitutes a single improvement, but it is quite clear that all of the roads were not intended to be made the subject-matter of a single improvement, and this is not the turning point of the case. The road or roads to be improved in each one of the districts created must necessarily constitute a single improvement, but it is equally clear that all of the roads in the combined districts do not constitute a single improvement and were not intended as such. All of the districts are created by one statute, but each is a separate district created for the purpose of improving the road or roads mentioned in that particular district and the assessments on land in each of the districts are to be based entirely on the benefits accruing from the improvement to be made in that district. If all of the roads in the four districts are to be treated as a single improvement, to be improved and paid for by assessments on all the lands of the district, then the case would fall within the doctrine announced in Road Improvement District No. 1 v. Glover, 89 Ark. 513, 117 S.W. 544, and the case of Swepston v. Avery, 118 Ark. 294, 177 S.W. 424. But such is not the state of the case. In this respect the facts of the case are more like those in the recent case of Johns v. Road Improvement Districts of Bradley County, 142 Ark. 73, 218 S.W. 389, though in that case the whole county was not embraced in the several districts created by the statute under consideration. The effect of the present statute is the same as if the Legislature had enacted four separate statutes creating separately the four districts created by this statute.

The statute contains a provision for submitting to the electors of the county, at an election called by the county judge, the question of invoking the operation of the statute, and an attack is made in this case upon the validity of the election held pursuant to the terms of the statute. It is alleged in the complaint that the election was held, and that a majority of the electors voted in favor of invoking the operation of the statute, but that the statute had not been published at the time of the election; that the electors were not familiar with its terms, and none of them had any idea of the probable cost of the improvement, and that those...