Easley v. Patterson , 142 Ark. 52 ( 1920 )

McCulloch, C. J.

The General Assembly of 1919 (regular session) passed three special statutes creating three separate improvement districts in Benton County for the purpose of improving certain specified roads. The districts were designated in the statute, respectively, as “Road Improvement District No. 2 of Benton County,” “Road Improvement District No. 3 of Benton County,” and “Road Improvement District No. 1 of Benton County.” See Act No. 119, approved March 1, 1919, creating District No. 2, and Act No. 238, approved March 11, 19Í9, creating District No. 3, and Act No. 115, approved March 27, 1919, creating District No. 1. A later statute was passed during the same session (Act No. 210) amending the statute creating District No. 2, by authorizing an extension of the road to be improved and the addition of other territory.

Owners of real property in each of the districts instituted separate actions attacking the validity of each of the statutes, and they have appealed from an adverse decree of the chancery court upholding the statutes. The three eases involve substantially the same questions, and have been consolidated here for the purpose of being heard.

Learned counsel for appellants present in their argument thirty-five separate and distinct grounds for the attack upon these statutes, the greater portion of which-grounds have been settled adversely to their contention by former decisions of this court. The questions are so' plainly settled by those decisions that it is unnecessary to refer to them for the purpose of application. We will, therefore, confine the discussion to the questions involved which are fairly open to debate under our own decisions.

The statutes follow, in a great measure, the usual form adopted by the lawmakers in the enactment of special statutes creating road improvement districts by describing the boundaries of the district and the roads to be improved, and by conferring authority on the commissioners to prepare plans for the improvement, to let contracts therefor, and to assess benefits and levy assessments thereon, and to borrow money and issue bonds.

The road or roads to be improved in District No. 2 are described in Act No. 149 as beginning at a point in a certain section where the road intersects the Eureka Springs-Seligman road “and running in a southwesterly direction through Garfield, Bestwater, Avoca, Rogers, Lowell, and to the south county line” in a certain section; also a road beginning at Rogers connecting with the above described road “and running west through Bentonville, Centerton to Decatur;” and also another road beginning on the Missouri line in a certain section “and running south through Sulphur Springs, Gravette, Decatur, Gentry, Siloam Springs and to the Oklahoma State line. ’ ’

The amendatory statute referred to above provides for an extension of this road “from Siloam Springs in a southeasterly direction to the Washington County line, and intersecting said Washington County line,” and “thence east with said Washington County line and with the south line of Benton County to the southeast corner” of a certain section. It will be seen from this description and by comparison with a map of Benton County, of which we take notice so far as the location of towns is concerned and the sections of land, there is a provision for a road running practically north and south, near the east boundary of the county from a point near the Missouri line southerly through the city of Rogers to the' Washington County line; .and also a road substantially paralleling the western boundary of the county from a point on the Missouri line south to the Washington County line, and also a road from the city of Rogers connecting with the eastern road -just mentioned, and running northwesterly through the city of Bentonville and certain other municipalities, and connecting with the western road at Decatur.

The statute creating District No. 3 provides for a road beginning on the Missouri line in a certain section near the town of Carvena, Missouri, thence in a southeasterly direction through Bella Vista to Bentonville; thence in a southerly direction through Cave Springs to the Washing-ton County line to a point in a certain section ; also a road beginning at the intersection of the road from Rogers to Bentonville in District No. 2, near Droke schoolhouse in a certain section; thence in a westerly direction to Morning Star schoolhouse; thence south and west to Vaughan, thence south and west through Mason Valley, to an intersection with the line between two specified sections of land; and thence along or near the section line and through the town of Highfill, thence in a general westerly direction through Springtown, thence in a general southwesterly direction to an intersection with the road from Siloam Springs to Gentry in District No. 2; also a road beginning at or near Morning Star schoolhouse and running west one-quarter mile, thence north to an intersection with the Bentonville and Center road in District No. 2.

The statute creating District No. 2 authorizes the improvement of a road beginning at Elkhorn tavern and running westerly to the town of Pea Ridge, “thence in a general southerly direction on the most practical route to an intersection with the road from Rogers to Garfield” in District No. 2 at or near the town of Rogers; also a road beginning at the southeast corner of the public square in Bentonville, thence in a northeasterly direction to an intersection with the above described road from Pea Ridge to Rogers, at or near the bridge across Sugar Creek.

In each of the statutes the roads are mentioned as public roads. Learned counsel for appellants argue with great earnestness that the statutes do not declare the roads to be public roads, and this is one of the grounds for attack. We do not think that it was essential to the validity of the statutes that there should be an express declaration therein that the roads have already been established as public roads. On tbe contrary, we hold that, if they are not public roads, it devolves on those assailing the validity of the statute to make it so appear. But, as a matter of fact, the sections of these statutes describing the roads each start out with an express statement that they are public roads, and we think that the attack on this ground is, from any viewpoint, unfounded.

It is alleged in the complaint (and this must be treated on demurrer as true) that there are several public roads from Rogers to Bentonville, and it is contended that this renders uncertain the description of the road “beginning at Rogers, connecting with the above described north and south road, and running west through Bentonville, Centerton to Decatur.”

Conceding that there is more than one public road between Rogers and Bentonville, there is nothing to show that there is not a particular one forming the continuous route from Rogers to Decatur so as to answer the description in the statute.

Again, it is argued that the words “thence in a general southerly direction on the most practical route to an intersection with road from Rogers to Garfield,” found in the statute giving description of the road from Elk-horn Tavern to Rogers, shows that it is not a public road. Such is not the necessary effect of those words. There may be more than one public road between Pea Ridge and Rogers, and the commissioners are there authorized to select the most practical one.

It is next contended that the roads, particularly in No. 2, in which two of the roads to be improved parallel the eastern and western boundaries, and one runs practically across the county for the purpose of connecting ■those two roads, are too diverse to constitute one improvement. The boundaries of the district extend three miles on each side of these roads. While the territory is large and the roads to be improved are extensive, we can not say on the face of the statute that these roads can not be treated as a single improvement, and that the finding of the Legislature to that effect is arbitrary. They fall within the rule announced in the case of Johns v. Road Improvement Districts of Bradley County, post, p. 73, decided this day.

The point is made also that the statutes constitute invasions of the jurisdiction of the county court for the reason that there is no provision for the county court to lay out the roads to be improved. The answer to this has already been stated in saying that the roads appear to have already been established as public roads, and it is unnecessary to invoke the jurisdiction of the county court. Each of the statutes provide, however, that the commissioners of each district “may with the consent of the county court of Benton County change the route of any of the roads herein provided for, or eliminate any of them, and may build such laterals as they may deem expedient, the same to be constructed upon highways laid out by the county court. ’ ’ This is a clear recognition in the statute of the jurisdiction of the county court over the subject of public roads, and contitutes an authority to invoke the aid of that jurisdiction for the purposes mentioned. Each of the statutes contains a section, which reads as follows:

“Said board of commissioners are further required to, upon the petition of 51 per cent, of either a majority in number, acreage, or valuation of property owners in any defined district or part, of Benton County not now included in this act, asking that additional territory be embraced in this district for the purpose of building or improving any road or roads not now included in this district, it shall be the duty of said board of commissioners to include said territory in said improvement district, and to assume jurisdiction over it, and to proceed to build, maintain and to construct a public road or roads-as herein provided in this act.”

It is difficult to discover the meaning of the lawmakers from the language used in this provision. It does not provide merely for the change of boundaries for the purpose of including laterals or changes in the route of the road, for that is provided for in another section. Giving the language the force which its use necessarily implies, it seems to confer authority for the creation of entirely new districts, but it is ineffectual for that purpose for the reason that there is no provision made in the statute for the assessment of benefits and the levy and collection of taxes for that purpose. The section is entirely inoperative, and is, therefore, void, but that does not affect the validity of the remainder of the statute, which provides that if for any reason any section or part of this act shall be held unconstitutional or invalid, that fact shall not affect the validity of any other part of the statute, “but the remaining portions shall be enforced without regard to that so invalidated.” There is no allegation that the commissioners were about to proceed under the section just quoted, and appellants are not entitled to any relief on that score.

In the principal section in each of the statutes, defining the power of the board of commissioners, it is declared that they “are hereby vested with the power and authority, and it is hereby made their duty, to build, construct, maintain and repair said road or roads within said districts as hereby provided.” The contention is that this is an attempt to confer authority, not only to construct the original improvement, but that it contains the continuing authority “to maintain and repair” said road or roads, and that to vest such power in the board of commissioners without orders of the county court would constitute an invasion of the jurisdiction of that court over public roads. We do not think that this language, standing alone and without any other provision in the statute to carry it into effect, constitutes sufficient authority for the commissioners to exercise a continuing power in the maintenance and future repair of the roads. The first section declares that the lands described “are hereby made an improvement district for the purpose of constructing and improving highways in Benton County.” This appears to be in conflict with the subsequent section, which uses the term “maintain and repair said road or roads.” An examination of the entire statute shows clearly that it was the intention of the lawmakers to provide only for the original improvement and for an assessment of benefits to raise funds to pay therefor. The statute, in other words, treats the project as a single one, and there is no provision for separate contracts for maintenance or repair or for reassessments of benefits for the new work to be done from time to time in the maintenance and repair of the road. The framers of the statute must have used a term in connection with the word “improve” so as to give the language its broadest effect in authorizing the improvement of the public roads described so that there might be found no restriction upon the power of the commissioners to improve the roads, but, in the absence of further provision sufficient to carry out the continuing power to maintain and repair the roads after they have been improved, we must assume that there was no intention on the part of the lawmakers to confer continuing power for that purpose. The words ‘ ‘ build, construct, maintain and repair, ’ ’ as used with reference to established public roads, were intended as synonymous terms to express broadly the power to be conferred. The commissioners are authorized in subsequent sections to form only one set of plans for the improvement and to assess benefits accruing only from the original improvement, which shows that the lawmakers did not intend to authorize assessments for future maintenance and repairs. The fact that the commissioners are continued in power after the completion of the improvement does not imply the power to make new contracts for maintenance and repair and to assess benefits arising from the same, for the manifest purpose of continuing the authority of the commissioners was merely to provide for collecting assessments and paying the cost of improvement and the bonds sold for that purpose.

We are, therefore, not called on to decide what would be the effect of a statute which attempts to confer continuing power on the board, of commissioners to maintain and repair public roads. Whether or not that would be an invasion of the jurisdiction of the county court, we need not now consider.

This statute does not, however, contain any provision that the plan for the improvement must be submitted to and approved by the county court, and it is contended that this constitutes an invasion of the county court’s jurisdiction. We have never had that question before us for decision, and now for the first time the question is squarely presented whether or not an improvement district created by statute can be authorized to mate improvements on public highways without obtaining the approval of the county court. Our conclusion is that the authority to improve a public highway does not invade the jurisdiction of the county court. The road is a public highway, but the improvement is for the betterment of the contiguous lands. The improvement of the road does not in any sense constitute an interference with the general control of the county court over public highways. The authority of the board of commissioners is to bring about a betterment of the highway and not a detriment. The authority of each body, that is to say the board of commissioners and the county court, may be exercised without hindrance to the other. This is illustrated by the decision of this court in the case of Pulaski Gas Light Co. v. Remmel, 97 Ark. 318, where we held that there was no conflict between the authority of a board of improvement to pave a street and the general authority of the city council over the streets of a municipality. Whenever the powers conflict, that of the board of commissioners must yield to the jurisdiction of the county court, but, as before stated, there arises no necessary conflict from the authority of the commissioners to improve the road. It is suggested that the county court after the completion of the improvement might exercise its jurisdiction over the road and destroy it. This may be true, but it is not to be presumed that a county court would abuse its power; and if it should attempt to do so, remedies are available to prevent it. The county court, in the exercise of its power, is subject to legislative restrictions, and remedies may be and are afforded for appeals from judgments of the county courts abusing their power.

It is next contended that a provision in the statute for assessment of benefits is contradictory and unenforceable in that the commissioners are required, in making assessments, to enter the lands upon the tax books “in convenient subdivisions as surveyed by the United States Government,” and that there is no provision for assessing town lots, which can not be described by subdivisions under the Government surveys. This provision is merely directory, and it does not mean that an assessment of a given tract of land under another description would not be valid. The provision merely designates the most appropriate method of description, but it is only applicable so far as it can be used to describe lands in the district. Other methods of description may be used when the directed method is not applicable.

The contention is made that the statute should be declared void because it gives the board power to vacate public roads, but this is not true, because, as we have already seen, the statute provides that any change in the route must be with the approval of the county court.

There is also a contention that the statute, in confining the limits of the district to lines three miles distant from the roads to be improved, is arbitrary, and that it excludes other lands which may be benefited by the improvement. It is pointed out that lands in the county east of the three-mile limit of the territory along the road paralleling the east boundary of the county will be necessarily benefited because of the opportunity to use the road, ánd that the same condition exists with reference to lands west of the limits of the boundary of that part of the district which parallels the west line of the county.

¥e have frequently had similar questions before us, and we have uniformly held that the legislative determination as to benefits is conclusive unless it is manifestly arbitrary and without foundation. The latest case on this subject is Bush v. Road Improvement District of Lee County, ms. op. And another illustrative case is that of Hill v. Echols, 140 Ark. 474.

It is contended that the statute creates a perpetuity by keeping the commissioners in office with power to name their own successors. No perpetuity is created by these statutes, for the districts are brought into being for specified purposes and last only until those purposes are accomplished. The commissioners are kept in authority only for that purpose, and there is no inhibition in the Constitution against the method of reappointing commissioners so as to continue the existence of the board until the purposes of the district have been accomplished. The Constitution does not restrict the power of the Legislature with respect to the method of appointing commissioners of local improvement districts, or in providing for the appointment of their successors. Reitzammer v. Desha Road Imp. Dist. No. 2, 139 Ark. 168.

We find nothing else in the case which has not been settled by repeated decisions of this court.

It is alleged in the complaint that notices of introduction of the bills for these statutes were not given, as required by the Constitution, article 5, section 23, and counsel renew this oft-repeated attack on the validity of the statutes. In the case of Davis v. Gaines, 48 Ark. 370, this court held that a presumption will be conclusively indulged that the Legislature found that the notice was given. The doctrine of that case remains to that extent unimpaired, and has been recognized in all subsequent decisions, including the recent case of Booe v. Road Improvement District, 141 Ark. 140, where we held that the provision of the Constitution requiring notice is mandatory, and that a presumption in favor of the legislative finding that the notice was given will not be indulged where the circumstances were such that it could not have been given.

The decree of the chancellor is, therefore, affirmed.