Johns v. Road Improvement Districts

McCulloch, C. J.

Appellants instituted this action below attacking the validity of an act of the General Assembly of 1919 (regular session), creating two improvement districts embracing contiguous territory for the purpose of improving certain roads in that county. Acts 1919, vol. 1, p. 898. The two districts are separately designated, and they are declared to be separate organizations with different commissioners. In other words, the two organizations are entirely separate in every respect, except that’ they were created by the same statute, which is in that respect similar to the statute which we upheld in the recent case of Van Dyke v. Mack, 139 Ark. 524.

The dividing line between the two districts is an irregular one, though it follows section and half-section lines, and District No. 1 embraces all of the northern portion of the county except thirty-three sections in the northwest corner of the county, and District No. 2 embraces all of the southern portion of the county, except certain areas in the extreme southern and southeastern part of the county equaling nearly two townships in extent. The boundary line between the two districts does not run straight across the county, but, as before stated, is an irregular line, following, however, section and half-section lines. The territory in District No. 1 runs far down the western side of the county well below the middle line, and the territory in District No. 2 runs up through the center of the county far above the middle line. The city of Warren, which is the county seat, is situated in the northeast portion of the county, and the roads converge, so to speak, from that point. The division line between the two districts is at that point along the southern boundary of the city of Warren. District No. 1 includes several roads to be improved, all converging, as before stated, from the city of Warren. One of those roads begins on the northern boundary of the county in a certain designated section and runs southerly to the city of Warren, and through the city to a certain point along a certain designated street. Another one of the roads begins on the northern boundary of the county, six or eight miles west of the beginning of the other roads, and runs southeasterly to the city of Warren, and thence through the city on designated streets so as to intersect with the other road. The other road to be improved begins on the eastern boundary line of the county, and runs northeasterly to the city of Warren, thence through that city along a certain designated street and thence westward to the town of Banks, and thence southwesterly to a certain point connecting with a public road coming across from Calhoun County. All of these roads are connected together in the city of Warren.

In District No. 2 the principal road to be improved is one beginning in the southern portion of the city of Warren and running thence southerly and southwesterly through the town of Hermitage and thence southwesterly along a designated route to Moro Bay on the southwest boundary line of the county. The only other road to be improved in that district is one forming a loop, which begins at the intersection of what is termed the Hermitage and Ingalls public road with the road last above described at the town of Hermitage, and running southerly to the town of Ingalls on the Chicago, Rock Island & Pacific Railway, thence in a southerly direction to the town of Vick, on said railroad, and thence northeasterly to Johnsville, and thence northeasterly to the intersection at a certain point with the aforementioned road from Warren to Moro Bay.

Appellants are owners of real property in the two districts, and joined, without objection, in a single action against the commissioners of both districts for the purpose of attacking the validity of the statute as a whole. The chancellor upheld the statute, and an appeal has been prosecuted.

The first contention in support of the assault on the statute is that it is discriminatory in its effect in that a certain tract of land situated in the heart of the affected territory, and abutting on one of the public roads, is omitted entirely from each of the districts, whilst other lands more remote are included. The tract alleged to have been omitted intervenes between one of the roads to be improved and other lands which are included, and, if the charge is true that these lands are omitted, it makes clear a case of unwarranted discrimination. Heinemann v. Sweatt, 130 Ark. 70.

This contention of appellants, however, is based upon the charge that the tract of land in question was omitted from the statute, but that there has been an unauthorized interlineation on the typewritten legislative bill as engrossed, and on the enrolled bill signed by the Governor and now on file with the Secretary of State, showing the inclusion of the tract alleged to have been omitted. In other words, it is conceded that the tract of land in question was included in one of the districts if the face of the enrolled bill be accepted as correct with the interlineation thereon, but appellants contend, and attempt in this case to prove, that the interlineations were unauthorized and were made after the enrolled bill was signed by the Governor and filed in the office of the Secretary of State. Much testimony was adduced bearing on the issue as to when the interlineations were made on the original typewritten bill and the enrolled bill as signed. The testimony adduced by appellants tends to establish the fact that the interlineations describing the tract of land in question were not on the original bill as engrossed after it passed the Senate, and that the interlineations on the enrolled bill were not there when the bill was signed by the Governor and filed in the office of the Secretary of State. On the other hand, the testimony adduced by appellees tends to show that the interlineations on the original bill were made after the bill had been prepared but before its introduction into the Senate, and that the interlineations on the enrolled bill were made with the consent of the enrolling committee of the Senate before it was signed by either of the presiding officers of the two houses of the Legislature or by the Governor. Appellants introduced clerks and assistants in the office of the Secretary of State who testified that they copied the enrolled bill and carefully compared the copy the next morning after the bill was filed in the office of the Secretary of State, and that these interlineations were not there at that time. The Secretary of State furnished to the State printer a duly authenticated copy of the enrolled statute and the copy thus furnished did not show these interlineations. Another copy was furnished to one of the newspapers at Warren, and it did not show the interlineations. A lady who was a stenographer doing work for members of tbe Legislature during the session of 1919 testified that she copied the bill after it had passed the Senate and was pending in the House, and that the bill at this time did not have any interlineations on it. The testimony of all these witnesses tended to show that the interlineations were not on the enrolled bill at the time it was approved and filed in the office of the Secretary of State, and the witnesses gave very definite statements on that subject, but conceded the possibility of overlooking the interlineations in making copies.

It seems to be conceded that the interlineations on the original typewritten bill are in the handwriting of Mr. Hugh R. Carter, an engineer, who at that time was connected with the State Highway Department, and who is now the engineer for the districts involved in this litigation. The interlineations on the enrolled bill are in the handwriting of Mr. Aubert Martin, who was then a clerk or draftsman in the State Highway Department. The testimony adduced by appellees tends to show that after the preparation of the bill, but before its introduction, it was carefully checked over by two attorneys who were interested in promoting it and Mr. Carter, the engineer, in the presence of the senator who introduced it, and that when these omissions were discovered they were supplied by the interlineations of Mr. Carter, and that the bill was then introduced and was passed in that form without amendment. The testimony further shows that after the bill had been duly passed by both houses and had been enrolled, the above mentioned parties who were interested in the bill were allowed by the chairman of the enrolling committee to take the enrolled bill into a committee room for the purpose of comparison to ascertain whether or not there were any errors therein and that they discovered that the interlineations on the original bill had been omitted from the enrolled bill and these interlineations were supplied by Mr. Martin on the enrolled bill. This was, according to the testimony, with the knowledge axid consent of the enrolling committee, and was done before the bill was signed by either of the presiding officers of the Legislature or by the Governor. The Governor was introduced as a witness and testified that his recollection was that when the enrolled bill was presented to him for approval the interlineations appeared there at that time in the handwriting of Mr. Martin, with which he was familiar and recognized.

There is a sharp conflict in the testimony as to when these interlineations were made. It would serve no useful purpose to further analyze the testimony of the various witnesses for the purpose of determining its force and effect.. Suffice it to say that the chancellor made a finding in favor of appellees on this issue, and we are unable to discover that there is a preponderance of the testimony against the finding of the chancellor. It is a well-established practice here not to disturb the findings of a chancellor on an issue of fact unless there is a preponderance of the testimony against those findings.

We deem it not amiss to say, without attempting to criticize the members of the Legislature or the assistants or employees of that branch of the Government, that the situation presented in this proof with respect to interlineations on the enrolled bill is a deplorable one by reason of the fact that it leaves open to question the last solemn record made of the enactment of a statute. Interlineations and erasures in bills, and journal entries concerning them, should be avoided as far as possible, even in the preliminary stages of the enactment of a statute, but when it comes to the enrolled bill there ought not to be any doubt as to the condition of the bill at the time it was approved and filed in the archives of the State for permanent preservation. That is the last and best evidence of the enactment of a statute, and its pages should be clear and unequivocal. No amount of urgency or haste should be permitted to call for sacrifice in accuracy, and when errors are discovered in comparison of an enrolled bill, the bill should be rewritten before presentation to the Governor. This case presents such an unseemly controversy and such a conflict in the testimony as to when the interlineations in the bill were made as to serve as a warning that the situation should not again arise. Each house of the General Assembly should have sufficient assistance for the enrollment of bills as to perform that work with accuracy and dispatch, and the work should be confined to those so employed and working under the supervision of the committee.

We pass then from this phase of the case, since we uphold the finding of the chancellor that the interlineations describing the tract of land in question were made in the bill before its approval.

It is next contended that the statute is void because it creates two districts which embrace the greater portion of the whole territory of the county. Counsel for appellant state in their brief that the territory embraced in the two districts covers eighty-six per centum of all the lands in the county and all the public roads, except about seventeen miles. It is contended that the case falls within the decisions of this court in Road Improvement Dist. No. 1 v. Glover, 89 Ark. 513, and Swepston v. Avery, 118 Ark. 294. The substance and effect of the Glover case was to hold that the inclusion of the whole of a county for the purpose of improving all the roads was void for the reason that the entire road system of the county was too diverse to be made the subject of a single' local improvement, and that it constituted an invasion of the jurisdiction of the county court. In Swepston v. Avery, supra, substantially all of a county was included in a road district for the purpose of improving any or all of the roads selected by the commissioners,-and the statute provided that the improvement should be paid for by assessments levied in the same proportion on all of the land in the county. We have never decided that the mere inclusion of the whole of a county in a district is void. On the contrary, we have held that the whole of a county may be included if the improvement is a single one and affects all the lands of the county. Board of Directors of Jefferson County Bridge Dist. v. Collier, 104 Ark. 425.

The test is not the extent of the area included in the district, but the singleness of the authorized improvement and the relationship to it of the included territory as to benefits to accrue from the improvement. This is not a case like the Glover case, supra, where all the roads in a county were to be improved, nor like the case of Swepston v. Avery, supra, where any or all of the roads might be improved and the cost of improving any given road taxed against all of the property in the district in like proportion. In each of the districts created by the statute now before us a large area — nearly half of the county — is included, and more than one road is to be improved, but the relations of the roads to each other are such that we can not say that the legislative determination that all of the roads to be improved in one of the districts constitutes a single improvement in that district so as to be grouped together as one improvement is arbitrary and erroneous. Nor is the area so extensive that we can say that the fixing of the boundaries of the district is arbitrary and erroneous. The case is, in this respect, ruled by the decisions of this court in Conway v. Miller County Highway Bridge District, 125 Ark. 325; Bennett v. Johnson, 130 Ark. 507; Sallee v. Dalton, 138 Ark. 549.

It is not true, as contended, that the statute in question invades the province of the county court in authorizing the commissioners to lay out and improve roads not already established as public highways. In describing the various roads in the two districts, the statute does not in each instance refer to the roads as public highways, but it is fairly inferable that they were found by the framers of the statute to be public highways, and there is no showing made in this case that they were not public roads; on the contrary, the proof adduced in the case shows that they are public roads. It is not essential to the validity of the statute that they should be described therein as public roads. In order to render the statute void, it would be necessary for those who assail its validity to show that the roads to be improved are not. public highways, and that no authority is conferred to submit to the county court the question of laying them out as public highways. The statute provides for changes in the route, and for widening and straightening the roads, but that this must be done under the approval and authority of the county court. It is provided in the statute that all the plans for the improvement must be submitted to and approved by the county court before the commissioners can proceed with the construction of the improvements. We find nothing at all in the statute which tends towards an invasion of the constitutional jurisdiction of the county court.

Attention is called .to the language of the two sections of the statute in regard to the appointment and qualification of commissioners, providing that “thereafter the commissioners of said district shall be maintained in succession in the same way as a board of improvement for the preservation and maintenance of the highway hereby contemplated.” It is argued that a continuing power over roads is thus conferred, which invades the jurisdiction of the county court.

This subject is discussed in the case of Easley v. Patterson, ante, p. 52, handed down this date, and fully disposes of the question. In addition to what is said in that case, it may be added that the language of section 26 of the statute shows unmistakably that its framers did not intend to confer a continuing power to make improvements, but limited the power to a single improvement to be presently made.

Section 29 of the statute contains the following provision: “The county court of Bradley County is hereby authorized to turn over to each of said districts such proportions of the road tax collected in any of the townships in which any of the lands of either of the districts shall lie as may be just and equitable, and the county court of said county is further authorized to contribute such funds in money or script to the expense of the several improvements from the general revenue of said county as it may deem appropriate, provided, that, if said county court shall make any contribution out of the general revenue of said county, it shall be apportioned equitably to each of the several districts hereby created.”

This is a recognition of the general public interest in the improvement of the roads mentioned. It confers authority for contributions out of the general road funds and is merely directory to the county court — not mandatory. ■ The county court exercises its discretion in determining whether or not the contributions shall be made and the provision is not compulsory. It does not invade the juridiction of the county court. McClelland v. Pittman, 139 Ark. 341. It relates to the original improvement and not to maintenance or repairs, which already falls within the authority of the court.

It is next contended that the provision in the statute for the assessments of benefits is not sufficiently definite to form a basis for the assessments, and that the whole statute fails on this account.' This contention is untenable, for the statute provides that the commissioners of each district shall “make an assessment of the benefits to be received by each tract or parcel of land, railroads and tramroads, and all other real property within the district of which they are the commissioners, and shall inscribe the same in one or more books, as may be necessary, together with the assessment of benefits against each tract;” that the assessment books shall be filed in the office of the county clerk and notice given of the time and place of a hearing to be afforded to property owners to present complaints concerning tile assessments. It is also provided that as soon as the assessments have been completed the county court shall enter an order levying assessments on the benefits, and the statute also prescribes the time and method of collecting assessments and enforcing payment of delinquent assessments. There is nothing found wanting in the statute to afford a complete and adequate scheme for the assessment and collection of benefits.

This completes the discussion of the several grounds of attack on the statute, none of which we find to be well founded. The decree of the chancery court is, therefore, affirmed.