Stanfield v. Road Improvement District No. 2

Smith, J.

This suit was brought to enjoin the construction of the road authorized by Act No. 689 of the Session Acts of 1919, and this appeal is from a decree of the chancery court dismissing the complaint filed for that purpose as being without equity.

It is first contended that the bill was not presented to and approved by the Governor within the time limited by the Constitution. But the decision of that question is controlled by the opinion of this court in the case of Rice v. Lonoke-Cabot Road Imp. Dist. No. 11 of Lonoke County, post p. 454, in which case the decision is adverse to appellant’s contention.

Other attacks against the act are directed to section 2 of the act, which reads as follows:

“Section 2. Said district is hereby organized for the purpose of building a road, beginning at Calmer at an intersection with the Warren and Pine Bluff road; thence in a general westerly and northwesterly direction to Rison and on and along such streets in said town of Rison as the commissioners may select.

“The improvement to be made by said district are to be made on route designated in this act, or substantially along this route, the nature of the improvements and any changes in the line of said road to be approved by the county court of Cleveland County.

“Said road to be constructed of material selected by the commissioners and approved by the county court. ’ ’

It is insisted that the act is void because it does not sufficiently designate the road to be improved, that it would be possible to build a road answering the designation contained in the act, a considerable portion of which would lie without the boundaries of the district as defined in section 3 of the act; that the act infringes upon the jurisdiction of the county court by authorizing the construction of new road; that the act authorizes the commissioners to improve any street, or all the streets, in the town of Rison, and, when so construed, an improvement is authorized which is too diverse to be constructed as a single district; and, finally, that the act is void for the reason that it deprives the officials of the town of Rison of the control of their own streets, and authorizes their improvement without requiring the consent of a majority of the property owners to be affected, in violation of article 19, section 27 of the Constitution.

It is recited in the act that “Said district is hereby organized for the purpose of building a road, beginning at Calmer at an intersection with the Warren and Pine Bluff road, thence in a general westerly and northwesterly direction to Rison. ’ ’ And it is conceded that there is an old established road running practically as- described in the act. It is said, however, that the act does not require the improvement of this road, and that authority is conferred to improve a new and different one, and that if the road were to run south of west forty-four degrees for six miles, after leaving Calmer, it would then be without the district, and that it might then run northwest, or practically so, into Rison, leaving a large portion of the road without the district.

These fears appear, however, to be groundless. A survey of the road has been filed along with the plans of the district, and has been approved by the county court. It does appear that some changes in the existing road are made; but these were made for the purpose of shortening the road and otherwise improving it; but this action required the precedent approval of the county court, and, therefore, as we have frequently recently decided, there is no invasion of, or infringement upon, the jurisdiction of the county' court. Nor was there any legislative intent to authorize or require this district to' construct and build a road lying without its boundaries.

We think the act does not authorize the improvement of all the streets of the town of Bison, or such portions of them generally as the commissioners may elect to improve, but that it authorizes the improvement only of such street or streets as supply a link in the road as it runs from the point selected., as its terminus in Bison. The language of the act is “on and along such streets in said town of Bison as the commissioners may select.” We think this language means a projection or continuation of the road along such street or streets in the town of Bison as is necessary to reach the county courthouse, the point selected as the terminus, and was not intended to confer, and does not confer, upon the commissioners power to improve the streets of that town generally.

What we have said is not in conflict with our opinion in the recent case of Payne v. Road Improvement District No. 1 of Marion County, 141 Ark. 288. There the act provided that the district should “build, improve, widen, straighten and repair all public highways within the boundaries of said district which have heretofore been dedicated as a public highway by the county court of Marion County, or by the town council of the incorporated towns of Bush, Yellville, and Summit * * *.”

Section 4 of the act there construed provided that “The said Board of Commissioners shall have and they are vested with power and authority, and it is hereby made their duty, to build, construct, maintain and repair said roads within said district and all public highways therein as they deem necessary and proper, as herein contemplated, and in doing .so shall expend all necessary sums of money authorized to be levied and collected under authority of this act, and qs herein provided.”

We there said that section 4 made it the duty of the commissioners “to build, construct, maintain and repair said roads within said district, and all public highways therein as they, deem necessary and proper, as herein contemplated,” and that the framers of the statute meant to include the public streets of the three incorporated towns mentioned. Having reached the conclusion there announced, that the act embraced all the streets and alleys of the three towns mentioned, we said the act was invalid, because it joined together as a single improvement the improvement of all the streets and alleys of three different incorporated towns in the same county, but widely separated from each other. But here only the streets in the town of Rison are embraced, and such streets only in that town are to be improved as are necessary to make a continuous, unbroken highway to the courthouse.

That case does, however, answer the argument that the act is void because it deprives the officials of the town of Rison of the control of their streets, for we there said: “We do not mean to hold that the inclusion of that portion of the streets of the towns which formed a part of the general highway to be improved would be invalid. Our previous decisions on that subject lead to the contrary. Nall v. Kelley, 120 Ark. 277; Conway v. Miller County Highway & Bridge Dist., 125 Ark. 325; Bennett v. Johnson, 130 Ark. 507.”

In answer to appellant’s contention that the act violates section 27, article 19 of the Constitution, in that it does not require the consent of the property owners of the town of Rison for the improvement of the streets of that town, it may be said that the cases of Bennett v. Johnson, and Nall v. Kelley, supra (as well as the cases there cited), decide that the section of the Constitution mentioned has no application to districts covering territory not wholly within the limits of a municipality.

Appellant finally complains that h(is assessments will exceed his benefits. But that question is not before us for decision in this cause, as appellant will have his day in court upon that issue when his assessments are made by the assessors. Section 10 of the act contains a provision for a hearing on that issue. Bush v. Delta Road Imp. Dist. of Lee County, 141 Ark. 247.

No error appearing, the decree is affirmed.