Wimberly v. Road Improvement District No. 7

• Decision Date: 12 November 1923
• Docket Number: 246
• Parties: WIMBERLY v. ROAD IMPROVEMENT DISTRICT NO. 7
• Court: Arkansas Supreme Court

255 S.W. 556

161 Ark. 79

WIMBERLY v. ROAD IMPROVEMENT DISTRICT NO. 7

No. 246

Supreme Court of Arkansas

November 12, 1923

Appeal from Polk Chancery Court; James D. Shaver, Chancellor reversed in part.

Decree affirmed, reversed, and remanded.

Norwood & Alley, for appellant.

The act is unconstitutional and void. It does not make any provision for the approval by the county court of changes that may be made. 130 Ark. 507; 138 Ark. 549; 139 Ark. 277; 142 Ark. 52; 143 Ark. 203; 141 Ark. 247; 147 Ark. 469; 148 Ark. 365; 86 Ark. 231. Section 2 of the act as to building bridges is contrary to the Constitution, art. 19, § 16. Said section did not provide any plan for letting the contract to the lowest and best bidder. 54 Ark. 645. The act does not expressly or by implication require that a proper assessment be made. An assessment made on the wrong basis is tantamount to no assessment at all. 153 Ark. 587; 127 Ark. 310; 86 Ark 1. The question of benefits is a question of fact. The location and surface conditions of the lands are matters to be considered in assessing the land. 141 Ark. 254. Section 11 of the act is unconstitutional because it makes no provision for notice to be given where revision is made by the county court. 240 U.S. 624; 16 A. 506; 174 U.S. 168; 60 Mo. 351; 121 P. 1094; 48 S.E. 464. The act is in conflict with art. 7 § 28, of the Constitution because it authorizes the commissioners to keep in repair and maintain the improvements and make all necessary contracts for that purpose.

Minor Pipkin, for appellee.

The act is constitutional. It is a rule of construction that the expression of one thing sometimes implies the exclusion of another. 38 Ark. 205. In construing a statute, the meaning must be gathered from the whole act. 31 Ark. 199; 102 Ark 205. Courts should give to a statute such a construction, if possible, as will enable it to take effect. 63 Ark. 576. It is the duty of courts to seek to ascertain and carry out the intention of the Legislature in its enactment, and to give full effect to such intention. 69 Ark. 376. Article 19, § 16, of the Constitution requiring bridges to be let publicly has no application to the letting of bridges by improvement districts. As to the assessment of benefits, the statute provides a remedy by appeal, and the chancery court had no jurisdiction to consider this part of the complaint, and properly dismissed it. The board adopted a standard calculated to produce approximately correct results. Section 10 of the act provides for ample notice of assessment of benefits. The statement of the complaint that the cost of the improvement is confiscatory is nothing more than a conclusion, not supported by statement of particulars upon which the conclusion is based. 144 Ark. 632.

HUMPHREYS J. HART, J. dissenting.

OPINION

HUMPHREYS, J.

Appellants, real estate owners in Special Road Improvement District No. 7, in Polk County, instituted this suit against appellees in the chancery court of said county to prevent the commissioners from constructing the improvement. The district was created by Special Act No. 312 of the General Assembly for the year 1920. The basis of the injunction proceeding is the alleged invalidity of the act creating the district and the assessment of benefits made thereunder.

The constitutionality of the act is questioned; first, because no provision was made therein for the approval by the county court of changes that might be made in the route; second, because the act did not make provision for the construction of the bridges to be let to the lowest responsible bidder; third, because the effect thereof was to take property without due process of law; and fourth, because the commissioners were authorized to maintain the road after being built, and to make contracts for that purpose.

The validity of assessments is assailed, first, on account of the basis adopted in making them; and second, because arbitrary and confiscatory.

Appellees filed an answer denying all the material allegations of the bill for injunction, and the cause was presented for hearing upon the pleadings and testimony of G. L. Clement, one of the assessors for the district, whose testimony was agreed to as facts in the case and incorporated in the decree. The trial resulted in upholding the validity of the act, but enjoining the commissioners from making the improvement without advertising for bids, as being contrary to public policy. Both appellants and appellees have prosecuted an appeal from the decree in so far as same is adverse to them, and the cause is before this court for trial de novo. For convenience we have followed, and will continue to follow, the style of the case by referring to the property owners as appellants and to the district and commissioners as appellees.

We first proceed to a consideration and determination of the several attacks made upon the constitutionality of the act in the order set forth in our statement of the case. The principal attack is made upon section 2 thereof, which is as follows:

"Said district is hereby organized for the purpose of building, improving and maintaining the public road in Polk County, Arkansas, beginning near what is known as the Waltman place, or near the section line between sections nine and sixteen, township 2 south, range 30 west, thence in an easterly direction to the Montgomery County line, following as near as practicable what is known as the Mena-Cherry Hill public road. The said public highway extends to Ink, Egger, and thence to the Montgomery line. (Then follow the numbers of the townships through which it runs). Said highway is to be constructed of macadam or of such other materials as the commissioners deem best, or the same may be improved as, in the judgment of the commissioners, is best, without rebuilding all the way, and they are authorized to build such bridges and culverts as they may find desirable. Any bridges built shall be built and approved by the county court. In building and improving said highway, the commissioners may proceed by letting the work as a whole, or in sections, or they may build same, or a fractional thereof, by day labor, or they may use county and State convicts as may be conceded them by the State or by Polk County. In case bids are advertised for, the commissioners shall have the right to accept or reject any bid."

1. Appellants interpret § 2 of the act as giving permission to the commissioners of the road to materially deviate from the Mena-Cherry Hill public road, designated in the act as the route to be improved, and to construct a private road in part, which would impair the jurisdiction of the county court over same after completion for purposes of maintenance, etc., in violation of article 7, § 28 of the Constitution of 1874. This interpretation is placed upon the act because the commissioners are directed to follow as near as practicable what is known as the Mena-Cherry Hill public road in constructing the improvements between the points designated. This construction of the act would invalidate it, and should not be adopted if some other construction can be placed upon it, not inconsistent with any of its parts, which would enable it to take effect. Wells Fargo & Co. v. Crawford County, 63 Ark. 576, 40 S.W. 710; St. L. I. M. & S. R. Co. v. State, 102 Ark. 205, 143 S.W. 913. Effect may be given to each part of the act, and to the act as a whole, without creating any inconsistency between the parts, by construing it to mean that authority is vested in the commissioners to improve the Mena-Cherry Hill public road, making only immaterial changes in the route thereof. The Legislature could confer this authority without encroaching upon the exclusive jurisdiction of the county court over public roads, and a careful reading of the whole act indicates that this was the intention of the Legislature. Of course, under this construction of the act, material changes cannot be made in the route unless made by an order of the county court. Bennett v. Johnson, 130 Ark. 507, 197 S.W. 1148; Sallee v. Dalton, 138 Ark. 549, 213 S.W. 762; Summers v. Damascus Road Dist., 139 Ark. 277; Easley v. Patterson, 142 Ark. 52, 218 S.W. 381.

2. The act provides for a private letting by the commissioners of a contract to build the bridges, and, for this reason, appellants insist that it is in conflict with § 16, article 19, of the Constitution of 1874, which in part is as follows:

"All contracts for erecting or repairing public buildings or bridges in any county, or for material therefor, * * * shall be given to the lowest responsible bidder, under such regulations as may be provided by law."

The language used in the act conferring authority upon the commissioners to build bridges has been construed by this court to mean bridges incident to the improvement or necessary appurtenances thereto (Van Dyke v Mack, 139 Ark. 524, 214 S.W. 23; Bulloch v. Dermott-Collins Rd. Imp. Dist., 155 Ark. 176, 244 S.W. 327), so they are district improvements and not county improvements in the sense of being built with county funds. The section of the Constitution referred to is a limitation upon the...