McKee v. English , 147 Ark. 449 ( 1921 )

McCulloch, C. J.

Appellant owns real estate situate within the-boundaries of Road Improvement District No. 3 of Washington County, an improvement district which was created by special act of the General Assembly of 1919, at the regular session (Yol. 2, Road Acts, 1919, p. 2034), and they instituted this action against the board of commissioners of said district attacking the validity of the statute, as well as certain proceedings of the board of commissioners.

The statute in question created three separate and distinct road improvement districts in Washington County numbered, respectively, 3, 4 and 5, and named three commissioners for each district, described the separate improvements to be constructed in each district and authorized the construction of the same and the assessment of benefits and levy of assessments, issuance of bonds, etc.

It was competent for the Legislature to adopt this form of creating by one statute numerous separate and distinct districts. Cumnock v. Alexander, 139 Ark. 153; White v. Ark. & Mo. Highway Dist., ante p. 160. This statute does not in express terms declare that each of the districts shall be separate and distinct, but such is the necessary effect of the language used in conferring authority on the commissioners to proceed with the construction of the improvements.

There was an amendatory statute enacted at the extraordinary session of the General Asesmbly in February, 1920 (unpublished act No. 529), which attempted to cure irregularities in the proceedings and also amended sections six, eight and twenty-seven in the original statute. The form adopted was to rewrite those sections anew, and the old sections were repealed. It is eon-tended that the amendatory statute repealed itself as well as the three sections mentioned in the original statute. The statement of the argument affords the best answer, for we can not assume that the lawmakers intended to do the absurd thing of expressly re-enacting certain sections with the intention at the same time to repeal them. What was clearly meant was to repeal the old sections as originally written and to substitute the new sections as rewritten.

It is also contended that the amendatory statute is void for the reason that such legislation was not embraced within the call of the Governor in convening the General Assembly in extraordinary session. If it be conceded that we are at liberty to go behind the action of the Legislature for the purpose of determining whether or not the statute in question fell within the scope of the call of the Executive, we find by examination of the Governor’s proclamation that it was sufficiently broad in its language to cover this statute. The purposes of the call, among other things, was for “ratifying, confirming and validating special or local improvement districts, organized under general laws or special or local laws, and enlarging the powers thereof.”

It is next contended that the statute is void because the authority to construct the improvement ..constituted an invasion of the jurisdiction of the county court. Section 6 of the section as amended contained the following provision: “Subject only to the general supervision and control of the county court of Washington County, Arkansas, as provided by the Constitution of said State, said boards of commissioners shall have exclusive jurisdiction over the construction and maintenance of the improvement herein provided for.”

We think that the language of this particular statute constitutes much stronger recognition of the jurisdiction of the county court and affords less ground for holding that it is an invasion of the jurisdiction of that court than does the statute under consideration in other cases where we held that there was no such invasion. Sallee v. Dalton, 138 Ark. 549; Cumnock v. Alexander, supra; Reitzammer v. Desha Road Imp. Dist., 139 Ark. 168; McClelland v. Pittman, 139 Ark. 341; Bush v. Delta Road Imp. Dist., 141 Ark. 247.

This statute declares in express terms that the authority of the commissioners over the construction and maintenance of the improvements shall be subject to the jurisdiction of the county court. That is to say, that the county court shall .have the supervision and control of the action of the commissioners. We can scarcely sec how the authority of the county court could be more emphatically expressed.

The proceedings of the board of commissioners are attacked in several particulars, some of which are barred by the period of limitation provided in the statute for bringing suit to invalidate the assessment of benefits. It is contended that the assessments are invalid because of the failure to assess telephone lines in the district. It is not alleged in the complaint that the telephone companies owned property in the district subject to assessment. There is an allegation that there are telephone lines in the district, but' it does not allege that they constitute property of the character which is subject to assessment. ¿However, this is a matter of which appellants are barred by the failure to bring an action within the time expressed in the statute.

There is also an attack on the validity of the assessments on the ground that they exceed the maximum limit provided in the statute. The statute provides that the “entire assessments levied upon the property of the districts for the construction and completion of the improvements herein provided for shall not exceed 30 per cent, of the assessed valuation of the real property within the districts according to last assessment for taxation, exclusive of interest on bonds, and overhead or contingent expenses. ’ ’

It is neither alleged nor proved that the commissioners are about to levy assessments in excess of the maximum limit prescribed by the statute. According to the undisputed evidence, the valuation of the real property in the district for general taxation purposes aggregates $1,852,566, and $539,000 is the contract price for the cost of construction of the improvements. This is within the limit of thirty per centum prescribed by the statute. It is true that the assessors have appraised the benefits in excess of this amount, but the thing prohibited by the statute is the levying of assessments in excess of the prescribed maximum — that is to say, the imposition of a tax in excess of that per centum. There is a difference between the appraisement of benefits and the levy of assessments, and the fact that the benefits are appraised in excess of the prescribed maximum does not affect the validity of the assessments if there is no levy in excess of the statutory maximum. Moreover, if it.be conceded that the assessment ■ of benefits exceeded the maximum, it would not avoid the whole assessment, but would merely result in a proportionate reduction down to the maximum prescribed in the statute.

It is also contended that laying out the road to be improved as prescribed in the statute is arbitrary, and that this renders the statute void, but this constituted a legislative determination as to the feasibility of the prescribed route -of the road or laterals, and there is no showing in the pleadings or proof that this determination was arbitrary and unreasonable.

Lastly, it is contended that'the contract for the construction of the improvement was void for the reason that notice was not published for thirty days as provided by the original statute. It does not satisfactorily appear from the record that the notice was not published for a sufficient length of time before the letting of the contract; but, even if such were true, that is one of the irregularities which was cured by the amendatory statute.

Our conclusion is that none of the attacks upon the validity of the statute or the proceedings thereunder is well founded, and the decree of the chancery court is therefore affirmed.