Vietz v. Hazen, Lagrue & Slovak Road Improvement District

• Decision Date: 07 July 1919
• Docket Number: 75
• Citation: 214 S.W. 50,139 Ark. 567
• Parties: VIETZ v. HAZEN, LAGRUE AND SLOVAK ROAD IMPROVEMENT DISTRICT
• Court: Arkansas Supreme Court

214 S.W. 50

139 Ark. 567

VIETZ v. HAZEN, LAGRUE AND SLOVAK ROAD IMPROVEMENT DISTRICT

No. 75

Supreme Court of Arkansas

July 7, 1919

Appeal from Prairie Chancery Court, Southern District; John M Elliott, Chancellor; affirmed.

Decree affirmed.

W. H Gregory, for appellant.

1. The act is invalid for many reasons. The defendant's demurrer was to an entire paragraph in which both the question of due process and the land owner acting as assessor are raised; if either one was well taken then the demurrer should not have been sustained. 32 Ark. 131; 37 Id. 34.

2. The act is unconstitutional because (1) it authorizes the commissioners to pay the expenses of preparing the act itself and attorney's fees, which is against public policy. 6 Corpus Juris 737; (2) the bill for the act was not approved by the Governor and the method of obtaining his signature was a fraud, against which chancery will relieve. 83 Ark. 463. (3) The assessment of benefits is provided for but no appeal is provided for from the hearing before the commissioners and it limits the time for appeal. The assessments are unequal and unfair in their methods. 86 Ark. 1; 48 Id. 382; 28 Cyc. 1162-3. The railroad property was assessed too low thereby discriminating against other land owners. The act is wholly void, but if not, then the assessment is on the wrong basis.

J. F Holtzendorff and Charles B. Thweatt, for appellees.

The act is constitutional and valid, as the fact that it is within the legislative power to form an improvement district and assess benefits and levy taxes to pay for betterments is well settled by this court and many others. Citations are unnecessary. The act is not in violation of the "due process" of the Constitution, nor are the assessments excessive or unfair or unjust. The "due process" and "just compensation" clauses have been fully met in this act; a hearing is provided for and the right of appeal given to the courts. 181 U.S. 371; 21 C. 616.

The evidence does not show that the assessments are in excess of benefits. Every presumption is in favor of the act and it not shown to be invalid. It is not void nor is the assessment because land owners acted as commissioners. 103 Ark. 141; 191 U.S. 310; 133 Ark. 133.

None of eight grounds alleged in the complaint as to the invalidity of the act are tenable. 59 Ark. 528; 99 Id. 103; 112 Id. 346; 72 Id. 126; 64 Id. 563; 211 S.W. 168; 74 Id. 180; 239 U.S. 254; 119 Ark. 188; 94 Ark. 380; 71 Id. 215; 72 Id. 201; 18 A. 328.

The demurrer was properly sustained to the paragraph containing the eight grounds of invalidity.

The assessment of benefits and the apportionment of same were not erroneous but according to law and justice. Page & Jones on Taxation, etc., p. 1103; 114 N.Y. 441; 21 N.E. 1004; 164 U.S. 112; 108 Ark. 421; 209 S.W. 728; 97 Ark. 343; 201 S.W. 709; 209 Id. 728; 201 Id. 808; 64 Ark. 265.

There was no error in the railway assessment nor in its reduction. It was not arbitrary nor unequal nor unjust. 209 S.W. 728.

The findings of the chancellor that the assessments are fair, equal and just are correct and should be sustained.

Cooper Thweatt and Emerson, Donham & Shepherd, amici curiae.

The suit was not filed in good faith, with a desire or view to ascertain the legality of the proceedings and should be passed until the Creger case is reached and the two cases should be heard together. We call attention to some cases where other courts have handled similar situations. 44 N.E. 413; 53 Id. 1102; 21 U.S. (Lawy. ed.) 141; 79 S.E. 676.

We think this suit is collusive and not in good faith and should be postponed.

MCCULLOCH C. J. HUMPHREYS, J., not participating.

OPINION

MCCULLOCH, C. J.

This is an action instituted in the chancery court of Prairie County attacking the validity of a special statute enacted by the General Assembly of 1919 creating a road improvement district in Prairie County. Act No. 107, session of 1919.

Appellant owns property in the district, and, in addition to the attack on the validity of the statute, he challenges the legality and fairness of the assessment of benefits made by the commissioners. The cause was heard upon oral testimony and there was a decree entered by the chancery court dismissing the cause for want of equity. Another property owner in the district brought a similar suit attacking the validity of the statute on precisely the same grounds as involved in the present action, but that cause has not been decided below. Counsel for plaintiff in that suit have appeared here, however, and asked leave to file a brief, and permission was given for them to do so, but instead of filing brief on the merits of the case they merely filed an abstract of the record in their case for the purpose of showing identity of the issues involved, and they ask for the postponement of the hearing of the present case until their case can be brought here on appeal. We see no reason for postponing the hearing of this case, but, of course, the conclusion we reach in the present case will not affect the rights of the litigants in another cause on a different state of facts, if it is developed that the facts are different.

The several grounds of attack on the validity of the statute are summarized in the briefs as follows:

"(1) Because it authorizes the commissioners to pay expenses of preparing the act itself; (2) because it limits the right of appeal from a judgment of a county court to twenty days which is contrary to the general law of the State, allowing six months' time for appeal; (3) because it limits the time within which suit may be brought relative to said improvement district, contrary to the general statute of limitations; (4) because it authorizes the commissioners to advertise and sell lands of the district where assessments have been made and not paid, without bringing a proceeding against the owner, but by description of the land only; (5) because it authorizes the commissioners to assess and tax against the property in the district the cost of organizing and promoting said district even though no improvements were made thereon; (6) because it provides that the commissioners shall not be liable for negligence; (7) because it authorizes the commissioners to sell any land which may be purchased by the district at any price and upon any terms, thereby ignoring the rights of property owners entirely; (8) because the act was not approved by the Governor as required by law, in that after the act had been passed by both houses of the Legislature a protest was filed with the Governor asking that he veto the same, the hearing upon the protest was set for a certain day and in the interim the Governor was absent from the State and the promoters of the act, including the representative of Prairie County and one of the commissioners, with full knowledge of all these facts, presented the bill to the Lieutenant Governor or Acting Governor and induced him to approve and sign said bill before the date set for said hearing, concealing from him the facts, which amounted to fraud, and said bill was therefore not legally approved or signed by the Executive of the State; (9) because each one of the three commissioners is a large landowner in the district, and each one of the commissioners is authorized to act as an assessor and to act as a judge in passing on issues as to the amount of the assessments, which is contrary to that clause of the Constitution that no person shall sit as a judge in his...