Phillips v. Tyronza & St. Francis Road Improvement District , 145 Ark. 487 ( 1920 )

Hart, J.

(after stating the facts).., It, is earnestly .insisted that, under the allegations of fhe.nqprplW^'j11 each case, when the interest is added-to. the .amourf of bonds proposed to be issued that the.cosf of- thq.imprqyement will exceed the total assessment of benefits, .qn^-for that reason the district is void. The. determination of this question depends upon the construction; tq.bp p,laped,-J?®on section 10, which is the same in each act.;ri.Jf .re.ad^ as follows: ,

“Section 10. The amount of,Interest,,which-,..will accrue on bonds issued by such district shaikh,e included and added to the tax, but the interest,to-accrub on account of the issuing of said bonds.shall.nqt bp construed as a part of the cost of construction in determining whether or not the expense and cost of making said improvements equal the benefits assessed.

“The levy of the assessment may be made by way of proportional amounts of the total assessed benefits, and interest need not be calculated until it is necessary to do so to avoid exceeding’ the total amount of benefits and interest, or the interest may be first collected. ’ ’

It is insisted that this section is invalid for the purpose intended because it does not contain a provision allowing the landowners the privilege of paying the assessments of benefits immediately after the levy of the assessment is made. This is no longer an open question in this State. In Pfeifer v. Bertig, 141 Ark. 531, this court held that a provision in the statute expressly allowing present payment of the amount of benefits assessed is not essential to give validity to an act authorizing the collection of interest on the assessment of benefits, and a statute containing no such provision is valid. In discussing the question in that case, the court said: ‘ ‘ The allegations of the answer show that to make the improvements the directors of the district contemplated the issuance of bonds which were paid serially through a course of twenty years. As the appellant got the benefit of the money derived from these bonds in the present improvement of his property, and, since the payment of his assessment was deferred, it was but just and right, under such a state of case, that he should be made to pay interest on the assessment of benefits. At least, such was the judgment of the lawmakers, and the act does not interfere with the right to contract.

Our attention has not been directed to any cases where.it is held that a provision expressly allowing present payment of the amount of benefits assessed is essential to give validity to acts authorizing the collection of interest on the assessment of benefits, and our own research has not discovered any cases so holding. On the contrary, the authorities seem to uphold statutes where no such provision is made.’’ To the same effect see Simmers v. Cole, 144 Ark. 494, and cases cited.

Again, it is insisted that the section is not sufficiently definite and certain to allow interest on the assessment of benefits. We can not agree with counsel in this contention. The concluding clause of the section shows clearly that it was the intention of the Legislature to authorize interest to be calculated on the assessments whenever it was necessary to do so in order that the cost of the improvement might not exceed the total amount of benefits. Hence we conclude that the court below properly held with the commissioners of the improvement district in this respect.

In the Parkin Boad Improvement District, another issue is made by the appeal. That district was established by act No. 181 of the Legislature at the special session held in 1920. Section 1 of the act specifically describes the road to be improved and as well, four laterals. The laterals are termed A, B, C, iand D. Lateral B is approximately 7% miles in length and the commissioners eliminated it from the district. It was specifically and definitely described in section 1 of the act creating the improvement district. Neither the commissioners nor the courts have the power to eliminate it. To do so would be to usurp the power of the Legislature and by conjecture say they would have passed an act essentially different from that actually enacted.

In Rayder v. Warrick, 133 Ark. 491, the court held, in a. case in all respects similar to the one under consideration here, that intending to give to commissioners the power to alter the plans and to change the route of the proposed improvement does not authorize the commissioners to change the plan of the improvement to a wholly different one, or to construct it over a wholly different route. The court in effect held that the operation of the statute was limited to immaterial changes in the plans and specifications and the route of the road. To the same effect see the later cases of Hout v. Harvey, 135 Ark. 102, and Pritchett v. Road Imp. Dist. No. 3, 142 Ark. 509.

The elimination of 7% miles of the lateral would be as material a change in the plans as adopted by the Legislature, as it would be to change that lateral from one location to another. This change rendered the assessment of the Parkin Road District void, and the court erred in not so holding.

■ It is contended by the road commissioners that the present suit was not commenced within the time allowed by the statute, and for that reason should be dismissed. In making this contention they rely upon the provision of the statute limiting the time of landowners in making objections to the assessment of benefits on their lands. The present suit, however, was not instituted for that purpose. It goes to the integrity of the district and attacks its validity. Hence it does not come within the provision of the statute limiting the time for reviewing assessments of benefits. Mo. Pac. Rd. Co. v. Conway Co. Bridge Dist., 134 Ark. 292, and Mo. Pac. Rd. Co. v. Conway County Bridge Dist., 142 Ark. 1.

It follows that the decree of the chancery court holding the Tyronza and St. Francis Road Improvement District of Cross County, Arkansas, to be valid, is correct and will be affirmed.

The decree, in so far as it holds that the assessment of the Parkin Road Improvement District is a valid one, is not correct, and for the reasons assigned above, the decree in this respect will be reversed, and the cause remanded for further proceedings not inconsistent with this opinion.