author: Smiti-i, J. Hart, J.,

text:
    House v. Road Improvement District No. 2.
    Opinion delivered April 16, 1923.
    1. Highways — eoad improvement act — approval op plans — appeal. — Although aet 245 of 1919 (Road Acts 1919, p. 1025) made no provision for an appeal from the order, of the county court approving the plans for the road improvement, the right of appeal nevertheless existed, and could have been exercised by any landowner, and the plans would not have become final until such appeal had been disposed of.
    2. Highways — road improvement act — appeal from assessment..— Under 1 Road Acts 1919, p. 1025, a landowner may, if he desires, appear before the commissioners and complain of his as- . sessment and then apply to the chancery court, or he may, if he prefers, wait until the commissioners have passsed upon the assessments and then apply to the chancery court for relief, and in either case'he is entitled to an original hearing de nova; hut if he fails to ask relief either from the commissioners or from the chancery court, the assessment becomes final and binding.
    3. Highways — road improvement act — sufficiency of notice of assessment. — 1 Road Acts 1919; p. 1025, providing for publication of notice of filing an assessment of benefits for two weeks in some newspaper published in the county, and permitting the landowner, within ten days after the last insertion of said notice, to appear before the commissioners to question the assessment of his land, and providing that within ten days after the hearing before the commissioners he may apply to the chancery court for relief, held to furnish sufficient notice to constitute due process.
    ■ 4. Pleading — effect of demurrer. — As a demurrer admits only those facts which are well pleaded, a demurrer to a complaint alleging that no notice of the intention to introduce a local or special bill was published as required by art. 5, § 26, of the Constitution, does not admit that no such notice was given, but submitted to the court that, as a matter of law, the question was one into which the .courts would not inquire.
    5. Highways — legislative assessment of benefits — due process. —The Legislature, if it sees proper, may ascertain the benefits • against lands and assess them, without violating the due process clause of the Constitution of the United States.
    6. Highways — road improvement district — notice of asses», ments. — Where the Legislature created a road improvement 'district and named it and designated its boundaries, and the published notice of filing the assessments referred to the district by its official name and gave the time and place when and where complaints as to the assessment of benefits in that district would be heard, this was sufficient notice.
    7. Highways — assessment of benefits. — An assessment of benefits in a road improvement district is not open to attack upon the ground that they were made under a mistake of fact' or that there was a discrimination in favor of or against certain property owners, unless the attack is made within ten days after the completion of the hearing on the assessments by the commissioners.
    8. Highways — road improvement district — filing certificate of ENTIRE levy. — There is no jurisdictional requirement that the commissioners of a road improvement district should file with the county' clerk a certificate showing the entire levy against the entire district with the entire cost of the improvement spread over the series of years during which it had been determined that the taxes should he collected.

      9. Highways — road improvement district — levy op assessments. —Where the commissioners of a road improvement district annually determined the percentage of benefits to be levied in the district, but, after making the levy, passed resolutions requesting the county quorum court also to levy taxes, such action by the quorum court added nothing to the validity of the levy, but did not invalidate it.
    10. Highways — road improvement district — change op plans.— Where the original plans of a road called for a width of 9 feet, but the State and Federal highway departments directed that it be built 16 feet wide at an excess cost of $118,000, such excess being paid for by Federal aid not otherwise available, the commissioners were empowered to make, the change.
    Appeal from Conway Chancery Court; W. E. Atkinson, Chancellor;
    affirmed.

      Hill S Fitshugh, for appellant.
    The finding that the levy of the tax as required by the act had been duly made is wholly without evidence to sustain it. The notice was insufficient in time, giving the landowners less than 20 days to appear and be heard in opposition to their assessments. 12 Corpus Juris, 1061; 64 Ark. 555; 78 Ark. 580. A totally different situation exists here from that in 74 Ark. 174, 204 U. S. 241, 51 L. ed. 461. See also 176 U. S. 398, 219 U. S. 47, L. ed. (8.2; 131 Ark. 28; Catón v. Western Clay Fist., 87 Ark. 8. Notice insufficient on its face is insufficient. 12 Corpus Juris 1262; 65 Cal. 313; 15 N. Dak. 365; 109 N. W. 363; 125 Am. .St. Bep. 599; 193 U. S. 79, L. ed. 623; 223 U. S. 261, L. ed. 429. Assessment made under mistake of fact. 121 Ark. 105; 141 Ark. 164; 141 Ark. 596; Pomeroy’s Equity Jurisprudence, §§ 852, 854. Discrimination against appellant in assessments so gross as amounts to a fraud. No valid levy was made, and the assessment is void. 147 Ark. 518. Statute there construed should be compared to the one herein. The assessment is void because of material changes in plan of road from 9 to 16-foot width. 130 Ark. 410.

      Owens & Ehrman, for appellees.
    Notice was sufficient in time. 219 H. S. 47; 130 U. S. 559. 32 L, ed. 1045; 172 IT. S. 314; 140 U. S. 316: 149 U. S. 30. Case cited by appellant. Nothing in 204 U. S. 241, 51 L. ed. 461, indicating that a notice for a shorter time than 4 weeks would be insufficient to constitute “due process.” 160 U. S. 112, 41 L. ed. 369; 191 U. S. 310, 48 L. ed. 195. Many of the special acts creating road improvement districts in the State provide for a notice by two weeks’ publication, and several of them have been held constitutional, and it cannot be said that the notice and opportunity for a hearing provided in this act is a departure from that usually afforded persons in this State. There is a class of cases that are somewhat analogous to this character of controversy. 214 U. S. 69, 53 L. ed. 914, followed in 239 TJ. S. 373; 25 Idaho 46. Decision in 176 U. S. 398, 53 L. ed. 520, has no bearing on this case. Nonresidence cannot relieve the owner from the duties -and obligations which the law imposes upon him in regard to his property in the State. 130 U. S. 559, 32 L. ed. 1045; 69 TJ. S., 2 Wall. 328; 90 U. S., 23 Wall. 108; 95 U. S. 722; 111 TJ. S. 701; 95 U. S. 37; 96 TJ. S. 105; 98 U. S. 403; 204 H. S. 241. Form of the notice sufficient. Cases cited by appellant reviewed .and distinguished. Boundaries of this district had been fixed by special act of the Legislature. Assessment is not subject to collateral attack. No contention is made that the property has not been and will not be benefited by the improvement made and that its inclusion in the district was arbitrary, and the action of the Legislature is conclusive. 63 Law ed. U. S. 1081; 64 L. ed. U. S. 215; U. S. 63, L. ed. 859; U. S. 60, Law ed. 266; 139 Ark. 168; 139 Ark. 277; 144 Ark. 632; 151 Ark. 484. Nothing to the contrary in 141 Ark. 596. Direct attacks were made on the assessments in cases of 121 Ark. 105 and 141 Ark. 164, cited by appellant, and in both the assessments were upheld. Zone system of assessments may be adopted upon proper consideration. 124 Ark. 292; 121 Ark. 105; 241 S. W. 883. Benefits may be determined according to the assessed valuation of the lands for general taxes. 68 Ark. 376; 69 Ark. 68; 86 Ark. 1. Can’t complain after time of reduction in assessment of railroad property necessitating an increase in assessment of benefits to other landowners. 149' Ark. 469. Levy was valid. 147 Ark. 518. Changes in plans not material 'and did not render assessment void. Wide discretion is given the commissioners in making’ changes. 138 Ark. 410; 135 Ark. 104; 150 Ark. 379; 241 S. W. 866.
   Smiti-i, J.

Appellant, who was the plaintiff below, brought this suit to enjoin the collection of an assessment of betterments for road taxes against her lands by Road Improvement District No. 2 of Conway County. She alleged that she owned 3,217 acres lying in the district; that the ■ad valorem assessment against the land for general revenue purposes was $43,030, and that the benefits assessed for the improvement of the road were $19,035, which are payable in twenty annual installments of $1,516.15, amounting in all, with the interest thereon, to $30,323.

The road improvement district was created by act 245 passed at the regular session of the 1919 General Assembly, and, pursuant to the authority therein conferred, the commissioners named by the county court assessed the betterments which the plaintiff, by this suit, seeks to enjoin.

The organization of the district and the assessment of betterments by it are attacked on the following grounds: (1) That the notice of the assessment of betterments, which, by the terms of the act, became liens on the land situated within the district, was insufficient in time to constitute due process of law; (2) that the notice to the property owners was insufficient on its face; (3) that the assessments were made under a mistake of fact, and are void on that account; (4) that the assessments are void because of discrimination against appellant in assessing the betterments against her land; (5) that there was no valid levy of the assessments the collection of which is sought to be enjoined; (6) that the assessments are void because the commissioners made a material change in the plans upon which the assessments were based without revising- the assessments.

Relief against plaintiff’s assessments was denied upon any of the grounds of attack, and her complaint was dismissed as being without equity, and she has appealed.

"We will discuss these questions in the order stated.

Act 245 of the Acts of 1919 (Special Road Acts, vol. 1, p. 1025) contained the emergency clause and became a law on March 11, 1919. It is substantially identical with a number of other special road laws passed at that session, and its provisions here under review are practically identical with those of a number of these other acts relating to the same subject.

The act created Road Improvement Districts 2, 3, 4 and. 5, and defined the boundaries of each, and section 9 thereof directed the county court to appoint three commissioners for each of these districts. These commissioners were duly appointed, and qualified and entered uppn and proceeded to discharge the duties imposed upon them. By section 11 it was made .the duty of the commissioners to improve and construct the roads therein described by grading, draining and surfacing them, or parts of them, in such manner and with such materials as the plans of the district may designate, and by constructing bridges and culverts as needed, according to plans that may be approved by the county court.

Section 13 provided for preliminary plans to be made by the State Highway Department, and authorized the commissioners to use these plans or to return them to the State Highway Department for amendment, and the Highway Department was directed to make plans and estimates upon the request of the commissioners, and to “amend any plans and estimates on more than one type or surface of the road, or its parts, containing alternative plans for bridges or culverts, together with any recommendation they may see fit to make.”

Section' 14 deals also with the plans to be adopted, but provides that the plans finally adopted shall be approved by the State Highway Department.

By section 16 it was provided that, after the plans had been approved, they should be filed with the clerk of the county court. The plans for District No. 2 were filed with the clerk of the county court on May 17, 1919, and were duly approved on June 14. The order of approval recited that no one had appeared in opposition to them.

Section 17 of the act contemplated that the plans of the improvement, as approved by the county court, might prove beneficial to lands not embraced in the original district as defined by the act, and provision was made for the extension of the boundaries of the district to include such lands. This section of the act required two weeks ’ published notice of that proceeding, and provided that the hearing thereon should not be less than ten days after the date of the last publication of the notice, and, after the hearing by the county court there provided for, any landowner whose lands were thus included was given ten days in which to appeal from the order of the court. None of the plaintiff’s lands were brought into the district in this manner, but these, as well as other provisions of the act, must be taken into account in determining the shortest time in which a lien could be fixed upon the lands.

After the commissioners, with the approval of the State Highway Department, had finally worked out the proposed plans, and had filed them with the clerk of the county court, that officer was required, by section 18, to give notice of that fact by publication once a week for two weeks in some newspaper published in the county, designating the date that the countv court would be in session for the submission of the plans to it, the last-insertion of said notice to be not less than five days before the date of the consideration of said plans. A form of this notice is set out in section 18.

Section 19 provides that, on the date named in the notice, the county court should consider said plans, and should hear any landowner interested therein, and that the hearing should be continued from time to time until completed, and^that when said plans had been approved, or had been modified and approved, they should be the plans of the district.

The act contains no express provision for an appeal from the order and judgment of the county court approving these plans, but the right of appeal existed and could have been exercised by. any landowner, and the plans would, of course, not have become final until such appeal had been disposed of. Carter v. Randolph County, 146 Ark. 221; Huddleston v. Coffman, 90 Ark. 219.

' Section 20 provides that, immediately after the approval of the plans, the commissioners shall proceed to make an assessment of benefits against the real property within the district, and shall inscribe the same in a book in which all the land shall be shown, and shall show opposite each tract the benefits assessed against it. As a part of the assessments, the commissioners were required to find and state any damages to any land which would result from the construction of the proposed improvement. The original of this hook remained with the commissioners, but they were required to make a copy thereof and file it with the county clerk, and this they did. Immediately upon filing this copy with that officer, it became his duty to give notice by publication, once a week for two weeks, in some newspaper published in the county, stating the fact that the assessment of benefits and damages to the lands in said district had been filed in his office, and to designate the date fixed by the commissioners on which the commissioners would hear any complaint against said assessments, the date of said hearing to be not less than ten days after the last insertion of said notice.

The assessment of benefits and damages was filed by the commissioners on June 17, 1919, and the notice thereof was published in a weekly newspaper published in that county in the issues of June 18 and June 25, and advised all persons to file their objections on or before July 7, 1919, the date named for the hearing of complaints by the commissioners. Section 20 prescribed the form of this notice, and the notice given conformed thereto, and it also required the commissioners to attend at the time and place specified in the notice for the purpose of hearing any complaints against any of said assessments of benefits or damages, and that any person failing to appear or complain within the time limited should be deemed to have waived any objection to his assessment of benefit's or damages. The commissioners were directed at this hearing to so adjust the assessments as that, when adjusted, they should be equitable and just.

Section 21 provided that any aggrieved property owner might, within ten days after the hearing by the commissioners, file" complaint in the chancery court against his assessments, and that court was directed to hear such complaint and.- equity in the matter, and, to that end, was authorized, if it was found proper so to do, to set aside the entire assessment and to order a new assessment in the manner and after the notice and hearing provided in the original assessment. It thus becomes obvious that the hearing provided for before the chancery court is itself a de novo hearing.

After the approval of the assessments by the commissioners, any property owner had ten days thereafter in which to apply to the chancery court for relief, and the right to so apply was not limited to those property owners only who had appeared and protested before the commissioners, for, after providing that persons who had complained in writing of their assessments might appeal, § 21 also provided that ‘‘any other person whomsoever who might have any objection to any assessment of benefits or damages, or to any other proceeding under this act or action of the commissioners, ’ ’ might file complaint in the chancery court within ten days after the completion of the hearing by the commissioners.

This language is too broad for its meaning to be mistaken. The landowner was given an opportunity, if he desired it, to appear and complain before the commissioners about his assessments, or, if he preferred, he might wait until the commissioners had passed upon the assessments and then appeal to the chancery court, and in either case he was entitled to an original de novo hearing. It was not necessary that he formally make himself a •party to the proceedings. He was made a party by the act itself, and, unless he appeared before the commissioners and was heard by them, he waived the right to that hearing; and if, at the conclusion of the hearing by the commissioners, a hearing by the chancery court was not invoked, the assessment became final and binding. Coffman v. Road Improvement Dist. No. 6 Lawrence County, 134 Ark. 411.

The case of Foster v. Bayou Meto Drainage District, 132 Ark. 141, involved the right of landowners to protest against their assessments for drainage purposes. The act there construed provided that any aggrieved property owner might appear before the county court within ten days after the publication of the notice of the assessment of betterments, and should have the right of appeal from the order of the county court upon his complaint within twenty days thereafter. It was there contended that only those persons could appeal from the order and judgment of the county court who had made themselves parties to the proceedings in that court. But we held that it was the purposé of the lawmakers to treat each property owner as a party to the record, so far as it affected the assessment of his property, and to give him the right of appeal at any time within twenty days after the final order of the court fixing the assessments, whether he had in fact appeared before the county court or not. Here the property owners must also be regarded as being before the commissioners, with the right to apply to the chancery court, whether they filed formal protest against their assessments or not, and this additional ten days must therefore be taken as a part of the time allowed by the act within which an aggrieved property owner might question his assessment in the chancery court. So that, if it be assumed that the commissioners would proceed with the greatest expedition possible in fixing liens on the lands in the district, and should discharge that duty perfunctorily or in bad faith, the property owner would have at least eighteen days in which to question his assessment before the commissioners, after the first publication of the notice that betterments had been assessed, which is itself, in our opinion, due process of law, and lie also has, in addition, ten days to proceed under section 21, giving him 28 days, under any circumstances, to appear and oppose his assessments.

Is that notice sufficient to constitute due process of law? We answer this question in the affirmative; and we do so upon the authority of the case of Ballard v. Hunter, 204 U. S. 241, and other decisions of the Supreme Court of the United States cited in the briefs of respective counsel, both prior and subsequent to that ease. This case of Ballard v. Hunter originated in this State (74 Ark. 174), and went to the Supreme Court of the United States upon writ of error from this court. That case arose out of a suit to collect delinquent taxes of the St. Francis Levee District. The act creating that district was the first of its kind in this State, and has served as a pattern for numerous other districts creating levee, drainage, road and other improvement districts. That act was upheld both by this court and by the Supreme Court of the United States, and, in the opinion of that court, it was said: “It should be kept in mind that the laws of a State come under the prohibition of the 14th Amendment only when they infringe fundamental rights. A law must be framed and judged of in consideration of the practical affairs of man. The law cannot give personal notice of its provisions or proceedings to every one. It charges every one with knowledge of its provisions; of its proceedings it must, at times, adopt some form of indirect notice, and indirect notice is usually efficient notice when the proceedings affect real estate. Of what concerns or may concern their real estate men usually keep informed, and on that probability the law may frame its proceedings, indeed, must frame them, and assume the care of property to be universal, if it would give efficiency to many of its exercises. This was pointed out in Hulng v. Kaw Valley R. & Improv. Co., 130 U. S. 559, 32 L. ed. 1045, 9 Sup. Ct. Rep. 603, where it was declared to be the ‘duty of the owner of real estate, who is a nonresident, to take measures that in some way he shall be represented when his property is called into requisition; and, if he fails to get notice by the ordinary publications which have been usually required in such cases, it is his misfortune, and he must abide the consequences.’ It makes no difference therefore that plaintiffs in error did not have personal notice of the suit to collect the taxes on their lands or that taxes had been levied, or knowledge of the law under which the taxes had-been levied.”

Counsel for appellant attempts to distinguish that case from this, and one of the distinctions pointed out is that the Ballard case was a proceeding to collect an assessment of betterments in an existing district, whereas this case involves the validity of a proceeding whereby the lien was imposed upon the lands lying in the district, and it is urged therefore that the greater publicity of that case constituted due process of law, whereas the lack of this publicity in the instant case is fatal to the validity of the district.

In support of this argument, appellant insists that the demurrer filed and sustained to the allegation of the complaint, that no notice of the intention to introduce the special bill enacting this legislation was given and published as required by section 26 of article 5 of the Constitution, admitted the truth of that allegation. But this was not the effect of the demurrer. The demurrer did not admit the allegation that notice had not been given, but submitted to the court that, as a matter of law, the question was one into which the courts would not inquire, for the reason that the question of the fact of notice, as well as its form and sufficiency, was a legislative, and not a judicial, question. Booe v. Road Imp. Dist., 141 Ark. 140. In other words, a demurrer admits only those facts which are well pleaded. Pierce Oil Corporation v. Hope, 248 U. S. 498; Pierson v. Wallace, 7 Ark. 282, 290; Keith v. Pratt, 5 Ark. 661.

It is true that, in passing upon the sufficiency of a notice to property owners to constitute due process of law, we test the act by a consideration of the shortest time under which notice could be given pursuant to this requirement, and that time is twenty-eight days, and, under the facts herein stated, we think this constituted due process of law. It may be said, in this connection, that the Legislature must have known that, as a practical proposition, a longer time would be required to fix the lien of the assessments upon the land than the shortest period under which it was possible to do so, and such was the case here.

The showing is made that appellant, who lived in Washington, D. C., knew nothing of the assessment of her lands until she applied for a statement of the taxes due thereon in January, 1920. But this lack of information was due to her failure to keep in touch with the progress of events in this State. It was a matter of the greatest notoriety that at the 1919 session of the General Assembly a road-building program was’ launched of such tremendous proportions as to attract very general attention. It was commented upon everywhere. The widest difference of opinion existed as to its wisdom, but every one at all familiar with the current history of the State had knowledge of the existence of a road-building movement throughout the State. There had been a vast propaganda in the interest of good roads, which found its fruition in the enactment of special road laws in nearly if not all the counties of the State.

Act 245 became a law March 11,1919. It was one of numerous other similar acts. The commissioners therein provided for proceeded immediately to carry out its purposes, and we recall no case among the numerous cases which have come before us for review in which the commissioners proceeded more expeditiously. By May 17 they had their plans and estimate of cost ready. Pursuant to the provisions of the act set out above, published notice was given on May 22 and May 29 that on June 14 a hearing would be had, at which any landowner might be heard in opposition to the approval of the proposed plans, and no one appeared to protest, either resident or nonresident. This proceeding was itself a part of the publicity necessarily involved in the proceeding to assess betterments. It will be remembered that the General Assembly created this district, as it had the right to do, and defined its boundaries. It may also be said that the General Assembly, if it had seen proper so to do, might have ascertained the betterments and assessed them against the lands, and this would have been due process of law. Salmon v. Board of Directors, etc., 100 Ark. 366; Tims v. Mack, 147 Ark. 112; Dorsey Land & Lbr. Co. v. Board of Directors, etc., 136 Ark. 524.

Here the Legislature created the district and defined its boundaries. Appellant’s land were placed in the district by the action of the General Assembly itself, which was a legislative determination that those lands would be benefited by the proposed improvement of the highways within the district; and, after doing this, the act provided that the commissioners should- determine the assessment of benefits and damages against the respective tracts of land in the district, and should determine, as an administrative matter, the per cent, of these betterments to be levied and collected each year; and, we think the notice which the act required is sufficient to constitute due process of law.

In answer to this insistence, it will again be recalled that the district is of legislative creation, and section 1 thereof created Road Improvement District No. 2 of Conway County, and gave it that name and designated its boundaries, and the published notice referred to it by its official name, and gave the time and place when and where the assessments of betterments in that district would be heard. We think this was sufficient.

The third and fourth grounds of attack may be considered together. The court sustained a demurrer to that portion of the complaint which attacked the assessments on the grounds that they were made under a mistake of fact, and that there was a discrimination in favor of, or against, certain property owners. This action of the court must be affirmed, for there must come a time when such questions are foreclosed. It was upon the faith of these assessments that the district incurred obligations and issued negotiable bonds with which to pay them, and these bonds are owned by the investing-public throughout the United States. The act expressly names the time when these questions are foreclosed, and that time is ten days after the completion of the hearing on the assessments by the commissioners, except as against property owners who, within that time, have applied to the chancery court for relief. -

We have in many cases upheld this limitation upon the time within which property owners may complain. The recent case of Pierce v. Drainage District No. 17, 155 Ark. 89, collects a number of them. This question was very thoroughly considered by us in the recent case of Road Improvement Dists. Nos. 1, 2 and 3 v. Crary, 151 Ark. 484, in which a very similar attack was made on an assessment of benefits. There the assessment had been made according to the zone system, which was said to be ari'btrary and unreasonable, but we answered that and other objections to the assessment as follows: “We have often decided that the method provided in the statute for attacking the validity of the assessment of benefits is exclusive, and that it must be pursued within the time prescribed by the statute. In other words, it has been settled by repeated decisions of this court that a collateral attack cannot be made upon the assessment of benefits unless void on the face of the proceeding’s. Reitzammer v. Desha Road Imp. Dist., 139 Ark. 168; Summers v. Conway & Damascus Road Imp. Dist., 139 Ark. 277; Nettles v. Hazlewood Road Imp. Dist., 144 Ark. 632; Sikes v. Douglas, 147 Ark. 469.”

In support of the proposition that there was no valid levy of the taxes here sought to be enjoined, it is urged that, as a jurisdictional requirement, the commissioners should have prepared and filed with the county clerk a record showing the entire levy against the entire district, with the entire cost of the improvement spread over a series of years during which it had been determined the taxes should be collected,- and that without such a record there was no mandate to the county clerk to extend the taxes upon the taxbooks. It will be remembered that the county -clerk is not an officer of the road improvement district, and that he would have no function to perform in the extension of the taxes on the taxbooks but for the fact that he is charged by law with the duty of making up the taxbooks used in collecting the general taxes, and, as the road improvement district taxes are collected at the same time, he must have the information upon which he can extend the improvement taxes against the respective tracts of land lying therein. The jurisdictional requirement is the action of the board in making the assessments and in authorizing their collection, to which end the county clerk performs the -clerical duty of extending the taxes assessed against the land. Counsel insist that the act requires that the assessments be so -made that any property owner might pay the assessment against his lands and thus stop the running of interest thereon. So it does; but we perceive no reason why appellant might not, in the beginning, have paid her assessment in full. The total amount thereof was fixed and -certain, and was shown in the record of these assessments kept by the commissioners and the copy thereof filed with the county clerk, as required by section 20 of the act.

We do not think it a jurisdictional requirement that there should have been filed, along with the assessment of betterments, a certificate by the commissioners showing the entire assessments for all the years during which the assessments would be collected. We think this certificate could be made annually, otherwise no effect would be given to that portion of section 2-5 which reads as follows: “If the proportion of the assessment of benefits first levied is not sufficient to complete the improvement, the commissioners may make additional levies of such amounts as shall be sufficient to complete the improvement and pay all indebtedness of the district, the aggregate levy against any particular tract, however, not to exceed the assessment of benefits against that tract.”

The commissioners might have made a levying order and furnished a certified copy thereof to the county clerk in the beginning, which order would have continued in effect until rescinded or altered, or until the betterments were consumed, pursuant to the directions of section 25; but this same section gave the commissioners the right to annually alter the proportion of the assessed benefits to be collected, and this necessarily implied the right to make an annual certificate of the proportion of the betterments to be collected.

The case of Jefferson v. Conway County Bridge Dist., 147 Ark. 518, announces the principle which controls here, and that is. that a failure to comply with a directory provision of an act will not invalidate an assessment if the jurisdictional requirements have in fact been complied with.

The record shows that the commissioners annually determined the percentage of the assessed benefits to be levied, but, after making the necessary levying order themselves, they passed resolutions requesting the quorum court to also levy the taxes, and the quorum court did- so. This was an unnecessary thing to do, and added nothing to the validity of the levy; but we do not think this unnecessary action on the part of the commissioners and the quorum court operated to invalidate the levy.

The remaining ground of attack is that the -commissioners made material and unauthorized changes in the plans of the road, which invalidated the assessment. The record reflects the following facts. The road in question is a link in the Little Rock and Fort Smith highway, one of the most frequently traveled highways in the State, and the original plans called for a road only nine feet wide. It was the opinion of both the State and Federal Highway departments that the road planned was not wide enough to carry the traffic over it, and those departments directed the laying of a sixteen-foot binder, instead of one of nine feet, and the change was made to conform to the requirements of the. State and Federal highway departments, and for the- purpose of securing aid from those departments which would otherwise have been withheld.

The original estimated cost of the improvement was $432,000, and the present estimated cost is $550,000, or $118,000 in excess of the original estimate. It is not shown what part of this cost is due to the- -change, rather than to increased cost of construction, but it is fair to assume that most, if not all, of the increase is due to this change. In -consideration of this change an allotment of $64,000 of Federal aid was made, of which $30,000 has been paid, and an additional allotment of $75,000 has been recommended and which the commissioners feel assured will be granted. So that this aid, if received, and when received, will more than equal the increased cost. •'! .Í Hjllpp]

We think the change made, although extensive in the matter of cost, was not so material as to be beyond the authority of the 'Commissioners to make. No change in the route or termini was involved, nor in the character of the road; the only change was that of increasing its width, and it appears this increased cost will be taken care of by an allowance of Federal aid which would not otherwise have been made. It is obvious that the proposed change adds to the value of the improvement, and certainly no property owner could expect any reduction of assessments on account of the change; and if it should operate to require the levy of a larger per cent, of the assessed betterments than would otherwise be the case, we are still of the opinion that the change is not so material as to be beyond the powers conferred by the act upon the commissioners in this respect. Road Improvement Dist. No. 1 v. Toler, 130 Ark. 410; Hout v. Harvey, 135 Ark. 104; Carson v. Road Improvement Dist., 150 Ark. 379.

Upon the whole case we think the complaint was properly dismissed as being without equity, and that decree is affirmed.

Hart, J.,

(dissenting). Judge Wood and myself agree that notice by publication is appropriate to the nature of the case; but are of the opinion that a publication for two weeks only is unreasonable, and therefore is violative of the “due process” clause of our Constitution. The imposition of assessments for local improvements by a board of assessors or other special tribunal is in the nature of a judicial proceeding, and when such assessment becomes final it is in the nature of a judgment against the lands upon which it is levied. Therefore the landowner is entitled to reasonable notice before any burden by way of special assessments is laid upon his land.

As the Hon. Joseph H. Choate once expressed it, the spirit of the constitutional rule is that the landowners shall have real bread in the matter of a hearing, and a publication of the notice for two weeks only puts them off with nothing but á stone. The notice by publication is for the purpose of apprising the landowners of the stated hearing upon their assessments to be given them by the board of assessors, and the notice should be published for a sufficient length of time to give the landowner an opportunity to acquire knowledge of the assessments and to prepare for his defense to it if he should deem it arbitrary, burdensome, or discriminatory. The constitutional validity of an act must be tested not by what has been done under it but by what may be done by its authority.

We agree that the publication of a notice for four consecutive weeks, as prescribed by the St. Francis levee act, construed in Ballard v. Hunter, 74 Ark. 174, is fair and reasonable to the landowner. We do not think that the ten days allowed the landowner who feels aggrieved by the action of the commissioners in assessing his land to file his complaint in the chancery court should be counted, for two reasons. To the same effect see Roller v. Halley, 176 U. S. 398.

In the first place, it is an established principle in all courts that the method of acquiring jurisdiction by publication is in derogation of the common law, and that the statutory requirements must be strictly construed in order to confer upon the court or other special tribunal jurisdiction in the premises. The object of the publication is to give the landowner notice of the hearing before the board of commissioners or assessors, as the case may be, and to give him an opportunity to prepare his case. Therefore the special tribunal ought to acquire jurisdiction in the premises before its action becomes final, and not afterwards.

In the next place, this court has held that the estimate of benefits is largely a matter of opinion, and that a great amount of deference is due to the judgment of the board of assessors, which is constituted as a special tribunal for the purpose of determining that question. Hence it was held that courts reviewing the proceedings of the assessors should not substitute the judgment of the judges for that of the assessors unless the evidence clearly shows that the assessments are erroneous. Rogers v. Highway Imp. Dist., 139 Ark. 322, and Wilkinson v. Road Imp. Dist., 141 Ark. 164.

So it will be readily seen that the landowner does not have the same chance to have his assessments corrected by review in the courts as he would have had in the first instance before the board of assessors, and a reasonable time should be given the landowners before the original hearing. The publication of the notice for a reasonable time is what gives the landowner constructive notice of the proceedings.

The statute provides that the commissioners shall designate a date not less -than ten days after the last insertion of the notice as the date for hearing complaints of the assessments. This is a legislative declaration that the service is complete at that time. Hence it will be seen that the court should not add ten days by judicial construction to the time allotted by the Legislature upon the specious plea that the landowner gets a de novo hear-' ing in the chancery court, when, according to the settled practice of this court, he gets nothing more than a review of the proceedings of the assessing board.

As a sort of make-weight argument, the majority opinion says that the current history of. the State shows that there had been a vast propaganda in the interest of good roads which resulted in the special road acts passed by the Legislature of 1919.

We have not read the history of the times through the same glasses. According to our view, there had been no public discussion looking towards the adoption of a system of constructing good roads throughout the State. Reckless and extravagant statements as to the cost of the roads and of the amount of Federal aid which would be received, which were calculated to lull the landowners into nonaction, were spread abroad after the passage of the special road acts.

The records of the Legislature show that no notice of the intention to pass any of these special acts was given and exhibited in the General Assembly, as required by art. 5, sec. 26, of our Constitution. During a legislative session of sixty days one volume of general acts of five hundred and twenty-two pages was passed; and there was also one volume of special acts of ten hundred and sixty pages. In addition to these the special road acts were published in two volumes, with a total of twenty-seven hundred and sixty pages of the size of those used in an ordinary law book. The roads provided for are not part of a system and have no relation to each other. It would have been a physical impossibility for these special acts to have been read three times, as required by our Constitution, within sixty days.

Special acts, under what is called legislative courtesy, are passed upon the request of the members introducing them. Referring to the history of the times recited in the majority opinion, we find that these special road acts were enacted for all the counties in the State. Not only was there no provision for giving the landowners a voice in the necessity or expediency of passing the acts imposing the whole cost of constructing the improved roads upon the landowners, but, in order to prevent a referendum to the qualified electors, the last section provides that, the act being necessary for' the immediate preservation of the' public peace, health and safety, an emergency is declared, and it shall take effect at once.

The court records will show that many of these special acts were prepared by attorneys representing special interests; and, if current history is the criterion, practically all of them were prepared by such attorneys, and protesting landowners were given no voice in the matter, although each act called for a bond issue of twenty-five or thirty years’ duration.

Local assessments are not founded upon any idea of revenue, but upon the theory of special benefits conferred upon the adjacent lands. If an illegal method of .assessment is adopted, it is the same in principle as if no assessment at all was made, and the special tax imposed amounts to an illegal exaction, which a landowner may resist whenever it is attempted to be asserted. Thus it will be seen that the system is open to grave abuses, and may lead to oppression and confiscation. Hence the importance to the landowner of being- given a reasonable time to act in the first hearing, to the end that he may not be deprived of his property without due process of law.

The fair name and fame-of our State can best be kept inviolate by giving the landowners a reasonable opportunity to be heard before fixing a burdensome or arbitrary special assessment on their lands, and such reasonable notice should be one that would carry into practical effect the declaration of our bills of rights, that all men have the inherent and inalienable right of acquiring, possessing, and protecting property; and its guarantee that the right of property is before .and higher than any constitutional sanction.

We recognize that, after the board of assessors ox-other special tribunal has oxxee acquired jurisdiction over the lands, short statutes of limitations might be provided withiix which to review these assessmexxts. The landowner is theix already in court, so to speak, and should prosecute with diligence his right to review the fixxdixxg of the board of assessors, to the end that the construction of the improvemexxt may not be unduly delayed.

Protestixxg, as we have often done before, against the zone system of assessixxg road districts, we believe that the present case goes further than any other previous decisioxx ixx upholding such a -system. It is true that the Legislature may commit to a special tribuxxal the power of apportioning the cost of an improvement and assessing the expense thereof, unless the method prescribed is plainly unadapted to arriving at a fair and equitable result. The Legislature has no power itself to make arbitrary assessments, or to grant power to subordinate tribunals that may be so exercised.

In Rush v. Delta Road Imp. Dist., 141 Ark. 247, we expressly stated that the power to make special assessments for local improvements and the power of apportioning them are identical and inseparable. Hence it was held in the last-cited case that in making the assessment it is proper to consider the nature and location of the lands in the district, the condition and character of the improvement, the cost and relative value of the property to the assessment, and as well the fact whether the plan and method .adopted has resulted in imposing a burden in substantial excess of the benefits or disproportionate as between the landowners in the district.

In other cases we have recognized that local assessments may so transcend the limits of equality and reason that its exaction would cease to be a tax and become extortion and confiscation. Coffman v. St. Francis Drainage District, 83 Ark. 54, and McClelland v. Pittman, 139 Ark. 341. Relief was denied in the cast last cited because the complaint did not allege the specific facts which would constitute the arbitrary abuse of power. In other words, the Legislature cannot act or authorize a subordinate tribunal to act upon an illegal principle of assessments or arbitrary method in making- or apportioning it. • ”

In re Washington Avenue, 69 Penn. St., 352, the court expressly stated that taxation has a limit per se, and is not always coextensive with legislative exaction. Continuing, the court said:

“But, nevertheless, taxation is bounded in its exercise by its own nature, essential characteristics and purposes. It must therefore visit all alike in a reasonably practicable way of which the Legislature may judge, but within the just limits of what is taxation. Like the rain, it may fall upon the people in districts and by turns, but still it must be public in its purpose, and reasonably just and equal in its distribution, and cannot sacrifice individual right by palpably unjust exaction. To do so is confiscation, not taxation,- extortion, not assessment, and falls within the clearly implied restriction in the bill of rights.”

This court had this principle under consideration in Radcliffe v. Scruggs, 46 Ark. 96. In that case the court had under consideration a statute which provided, in substance, that all actions to test the validity of any proceeding in the appraisement, assessment, or levying taxes upon any land and all proceedings seeking to show any irregularties of any officer having any duty to perform in the assessment, appraisement, levying of taxes, or in the sale of land delinquent for taxes, or proceedings seeking to .avoid any such sale for irregularities, shall be commenced within two years from the date .of sale, and the court held the act to be unconstitutional. In discussing the statute the court said: '

“But in this sweeping enactment the legislative department transcended the boundaries of its powers. It could not, under the Constitution of 1868, or any similar constitution, enact a statute which should transfer one man’s property to another under a guise of a sale for nonpayment of taxes, when there had been no assessment or no levy of taxes. This would not be due process of law. Neither could it prescribe a short-period of time, nor indeed any period, within which the owner -must make'his objections for such fundamental defects, lie remaining in possession and being, in the instance supposed, in no default for not paying his taxes.”

Again, in Stiewel v. Fencing District No. 6 of Johnson County, 71 Ark. 17, the court had this principle under consideration as applied to improvement districts, and it was held that defects which aré jurisdictional and indispensable could not be cured by limitation statutes; and the case of Radcliffe v. Scruggs, supra, was cited to support the holding.

A- short recitation of the undisputed facts in this case will show that the assessment of benefits by the zone system, in this case resulted in .an arbitrary discrimination against the appellant. She owned a farm comprising about 3,000 acres, but only 700 acres are in cultivation or susceptible of being put in cultivation by any practical method. The rest of her lands are covered by lakes and other bodies of water to such an extent that, according to the undisputed evidence, it is not practical to drain it and thereby render it fit for cultivation. Notwithstanding this, all her lands were assessed under the zone system, a»d the lands under water were assessed at the same rate as those in cultivation, where they were the same distance from the road. The board of assessors were bound to know the condition, the character, and configuration of the earth’s surface within the proposed district. We recognize that courts cannot review the power of the Legislature, or its subordinate agency in the premises, unless the assessment has been made upon a demonstrable mistake of fact or that in making it the Legislature or its subordinate agency applied an illegal principle, or arbitrary method of assessment.

The zone system, as applied in the present case, under the undisputed evidence fails, as unreasonable and not a fair substitute for a valuation made by a designated tribunal acting according to law, and therefore violates the “due process of law” clause in our Constitution, which is a limitation upon arbitrary power and is a guaranty against arbitrary legislation. When the condition and character of the soil and the configuration of the earth’s surface are taken into consideration, it is evident that the zone system of assessments in road improvement districts is necessarily arbitrary and discriminatory.

It is not like the case of a drainage or levee improvement district, where the land is covered with 'water and the construction of the drainage ditch or the levee reclaims it. In such case it is impossible to foresee exactly how a proposed tax will fall, and if the construction of the improvement increases the value of the different classes of land within the district proportionately, the burden will be distributed in as fair and just way as can be done. But in road improvement districts the case is different. The road which it is proposed to improve is already laid out and in use; it serves the landowners adjacent to it, as well as the general public. As above stated, its situation with reference to the land is known in advance of the assessment. To charge- the cost of the improvement upon farm lands lying within a designated distance on each side of the road at a fixed sum per acre necessarily results in discrimination, and is so obviously onerous and unreasonable that it cannot, on any fair principle of reasoning and justice, be said to be .a valuation according to benefits.

The kind and character of the soil and topography of the lands in the district do not change. Natural objects, such as lakes, streams, hills, and hollows remain the same, so that it cannot be said that the proof might be one way in one case and another way in a subsequent case. If an arbitrary or illegal method of assessment is adopted in the first instance, it is the same as if there had been no assessment of benefits, and the landowner has a right to resist at any time a suit to place a lien upon his property as an illegal exaction, if he remains in possession of his land by himself or through tenants.

Therefore we respectfully dissent, without expressing our opinion on the other questions raised by the learned counsel for appellant.


source: Caselaw Access Project

author: Humphreys, J. Hart, J.

license: Public Domain

text:
    House v. Road Improvement District No. 5.
    Opinion delivered April 16, 1923.
    1. Highways — road improvement district — exclusion of benefited land. — Where a special act creating a road improvement district authorized the county court to extend the boundaries of the district so as to .include any lands benefited by the .improvement, the effect was to preserve the validity of the act in case a demonstrable mistake was made by the Legislature in establishing the boundary lines, in which case the remedy of the property owners was not to impeach the validity of the district on account of the exclusion of benefited lands, but to move the inclusion of them.
    2. Highways — road improvement district — validity of special act. — Where a special act created four road improvement districts in a county and apportioned the lands of the county to the districts, and nothing in the act creating the district, and no fact of which the court takes judicial knowledge, shows a demonstrable mistake or arbitrary action in excluding lands from any particular district, the act will be upheld.
    3. Highways — road improvement districts — termini and boundaries. — Improved roads must necessarily have termini, and improvement districts must have boundaries.
    4. Highways — road improvement district. — The rule that the inclusion of lands entirely separated from the road to be improved by impassable obstructions or barriers renders the act creating the road district void, has no application where appellant’s lands were separated by a small creek and cypress brake, of which the court takes no judicial notice.
    5. Highways — act creating road district — validity.—The creation by statute of a road improvement district as a public agency for the construction of a proposed road improvement, is a legislative and not a judicial proceeding, and does not present a judicial question, further than the determination whether the statute is a valid enactment, which must be determined from the face of the statute or from matters of which the court may take notice.
    6. Highways — abandonment of lateral. — The finding of the chancellor that the commissioners of a road improvement district had not abandoned the construction of a lateral road which wias an essential element of the improvement designated by the Legislature, held sustained by the evidence.
    Appeal from Conway Chancery Court; W. E. Atkinson, Chancellor;
    affirmed.

      Sill £ Fitshugh, for appellants.
    Abandonment of the Shaw’s Bridge lateral, 8 miles in length, defeats the assessment. 105 Ark. 487; 134 Ark. 292; 142 Ark. 1. Exclusion of lands benefited renders district void. Case is controlled bj^ the decision in 145 Ark. 49, which affirms principles announced in 130 Ark. 70, and 139 Ark. 574; 145 Ark. 288. District arbitrarily created. 240 U. S. 55; 249 U. S. 63. No benefits received. 83 Ark. 54. If court has held that where the evidence indisputably shows no benefits have been or can be received, the owner must show this within the 20 days allowed for making complaints, then it has overruled the principle announced in 81 Ark. 562; 141 Ark. 247; 239 U. S. 478; 145 Ark. 51. Levy excessive and void. Material changes made invalidate the assessment. 137 Ark. 354; 135 Ark. 4; 142 Ark. 509; 137 Ark. 177¿ 123 Ark. 205.

      J. W. Johnson and Strait £ Strait, for appellees.
    Evidence does not show Shaw’s Bridge lateral abandoned, but to the contrary. No exclusion of lands benefited from the district. Case of Ruddell v. Rutherford, 145 Ark. 49, and oases cited, are not in point and have no application here. It is the exemption of lands benefited that invalidates district. 140 Ark. 479; 139 Ark. 347. Authorities already cited answer the contention that the district was arbitrarily created. 133 Ark. 119; 100 Ark. 366; 108 Ark. 419; 83 Ark. 344; 9iS Ark. 113; 146 Ark. 289, in conclusive on this point. See also 140 Ark. 115; 144 Ark. 301; 142 Ark. 52; 142 Ark. 73; 139 Ark. 153; 139 Ark. 341; 138 Ark. 549. Act also authorizes lands outside boundaries to be included when benefited. Sec. 17. Claim of no benefits received without merit. 139 Ark. 322; 142 Ark. 13; 98 Ark. 543. Notioe.wa,s given and was sufficient. 139 Ark. 277; 139 Ark. 341; 139 Ark. 153; 103 Ark. 461; 147 Ark. 362; 147 Ark. 449.; 141 Ark. 254; 98 Ark. 543. Zone system of assessment not invalid. Too late to complain assessments made on wrong basis. Id. Levy not excessive and void. 147 Ark. 249.

      Hill & Fitshugh, in reply.
    Testimony reargued and authorities cited, by appellees reviewed. Payment under protest. 107 Ark. 204. No attack can be made on validity of assessment in action to collect delinquent tax.
   Humphreys, J.

Appellant instituted this suit in the chancery court of Conway County against appellees, attacking the validity of Road Improvement District No. 5 of Conway County and the assessments of benefits against appellant’s lands embraced within the district. The district was created, along with other districts in said county, by special act No. 245 of the Legislature of 1919. The first ground upon which the validity of the act itself is assailed is that the notice to the property owners whose lands were included in the district provided for in the act was not sufficient as to time, or upon its face, to apprise property owners of the burdens about to be laid upon their lands, and was a taking of appellant’s property included in the district without due process of law. This identical point was involved and determined adversely to the contention of appellant in her attack upon Road Improvement District No. 2 of Conway County, which is a companion case.to this in many respects. We deem it unnecessary to reiterate what was said in that case bearing upon this point. The second ground of attack upon the validity of the district is that it was arbitrarily created by the Legislature, as evidenced, first, by the alleged exclusion of benefited lands from the district, and second, by the alleged inclusion of appellant’s unbenefited lands in the district.

(1) The district, for the greater length thereof, is between seven and nine miles in width. It is about twenty miles in length. Plumerville is situated in the southwestern corner of the district, and, generally speaking, the district lies toward the northeast from Plumerville, and includes the town of Springfield, situated eleven miles northeast of said town. The main road of the district runs due north from Plumerville for a distance of three miles, where it turns toward the northeast, running through Springfield and to the eastern boundary line of said district. A prong of the road also runs due north out of Springfield to the northern boundary line thereof. About three miles north of Plumerville a lateral runs in an easterly direction to the east boundary line of the district. From this description it will be readily seen that the boundary lines of the district immediately south and west of Plumerville are much nearer the main improved road than the east bound- ■ ary line. It necessarily follows that the lands adjoining the district south and west of Plumerville are nearer to the main improved road than some of the lands east and southeast of Plumerville which were included in the district. Appellant makes the argument that, because lands west and south of the district are nearer the main improvement than lands east and southeast thereof, which were included in the district, the district was arbitrarily created, and therefore void. There are several reasons why this is not so.

In the first place, section 17 of the act creating the district authorized the county court, upon notice and hearing, to extend the boundaries of the district so as to include any lands benefited by the improvement. The purpose of including a flexible provision of this kind in the act was to preserve its validity in case a demonstrable mistake was made by the Legislature in establishing the boundary lines so as to exclude lands benefited by the improvement. The remedy of the property owners was not to impeach the validity of the district on account of exclusion of benefited lands, but to move the inclusion of them.

Again, there is nothing in the act creating the district, or any fact of which the court will take judicial notice, showing a demonstrable mistake or arbitrary action on the part of the Legislature, in excluding lands from the district. The act itself included the other lands excluded from District No. 5, of which complaint is made, in other improvement districts, and from aught that appears, under the general system of improvement, may have equitably apportioned the lands to the particular district in which they would receive local and peculiar benefits on account of trade relationships, markets, etc.

And again, this court is firmly committed to the doctrine that improved roads must necessarily have ternúni, and improvement districts boundaries. Hill v. Echols, 140 Ark. 479; Tatum v. Wallace, 146 Ark. 289.

(2) The south boundary line of said District No. 5 is the south line of sections 19, 20, 21, 22, 23, and 24 in tp. 6 N., range 15 W., in Conway County. A part of appellant’s lands were located in section 21 in said district. Appellant alleged and made proof that, on account of Grap Creek and cypress brakes, the only practical route from said lands in section 21 to the improved roads in said district is to cross the south boundary line thereof and pass over lands not included in the district, and a part of which was nearer the improved road than appellant’s lands. Appellant argues that this situation invalidates the act creating the district under the rule announced in Heinemann v. Sweatt, 130 Ark. 70, and subsequently approved in Milwee v. Tribble, 139 Ark. 574; Johns v. Road Imp. Dist., 142 Ark. 73, and Ruddell v. Rutherford, 145 Ark. 49. The rule announced in those cases is that when it appears, from the face of the act creating an improvement district, or from conditions or situations of which the court will take judicial knowledge, that lands of complaining owners are entirely separated from the roads to be improved by intervening lands excluded from the district, or by impassable obstructions or barriers, the inclusion of the lands thus separated renders the act void because arbitrary and discriminatory. In the instant case neither the act itself, nor any impasse of .which this court will take judicial notice, separates appellant’s lands in section 21 from the improved roads in the district. On the contrary, none of the lands embraced in the district, according to the face of the act and such facts, as this court judicially knows, are separated from the improved .roads by an impassé or intervening excluded lands. The Ruddell case, supra, which, learned counsel so earnestly .insist, controls the case at bar, is not applicable because the impassé in that case was an island and navigable stream, of which this court took judicial notice. The only obstructions between appellant’s lands in section 21 and the improved roads in said district are a small creek and cypress brakes, of which this court takes no judicial notice.

The statute itself does not impose any burden on the lands included, but merely creates the district and fixes, the boundaries. Adequate methods are provided for the ascertainment of actual benefits and burden of assessments, and the owners of.property are given an opportunity to be heard, which constitutes due process of law. The mere creation by the statute of the district as a public'agency for the construction of a proposed improvement is a legislative, not a judicial, proceeding and does not present a judicial question, further than the determination whether the statute is a valid enactment, and this must be determined from the face of the statute and matters of which the court may take notice. Greene County v. Clay County, 135 Ark. 301. Hence the facts upon which the Legislature is presumed to have based its determination as to the wisdom and propriety of the enactment cannot be reviewed by the courts. The federal cases, on which learned counsel for appellant rely, recognize this distinction. Houck v. Little River Drainage Dist., 239 U. S. 254; Myles Salt Co. v. Iberia Dist., 239 U. S. 478.

In the Houck case the court said: “Whether the expense of ascertaining the best method of reclamation should subsequently be reimbursed when final assessments Avere laid according to benefits ascertained to re•sult from the execution of the final plan presents a question of policy, and not of power. These outlays for organization and preliminary surveys could as well be considered specially to concern the district, as constituted, as highways or public buildings' or plans for the same (whether consummated, or abandoned) could be said to concern counties or towns. Further, it would seem to be clear that the State could appropriately provide for meeting the preliminary expense when it was incurred and could determine the manner of apportionment according to the interests deemed to be affected as they existed at the time. And in this view it is not material to ■consider whether the area of the district might subsequently be extended, or what particular lands within it would be appropriated for ditches, reservoirs, etc., if a plan of drainage were adopted and carried out. To say that the tax could not be laid except as a result of such an inquiry would be to assert in effect that as a preliminary tax it could not be laid at all. We know of no such limitation upon the State power.”

The validity of the assessment of benefits against appellant’s lands embraced within the district and the right to collect same are assailed upon a number of grounds, all of which, except one, were decided adversely to appellant’s contentions in her attack upon the validity of the assessments and the right to collect same, in the case of House v. Road Imp. Dist. No. 2 of Conway County, ante, p. 330, submitted as a companion case with the case at bar. In order to avoid repetition, w.e refrain from discussing these points again. One ground of attack is made upon the validity of the assessments of benefits and the right to collect same against the lands in the instant case which was not made in the case referred to. It is alleged that the commissioners abandoned the construction of a lateral beginning about two' miles north of Plumerville and running east to the eastern boundary line of the district and known’ as Shaw’s Bridge lateral, or Caney Valley lateral. It is contended that the elimination of that lateral was a substantial departure from the improvement designated by the Legislature. The lateral in question was about eight miles long, and, under numerous decisions of this court, .was an essential part of the improvement contemplated by the Legislature, and the elimination thereof would be a material change in the plans, having the effect of avoiding the assessment against the lands in the district for its construction. Phillips v. Tyronza & St. Francis Road Imp. Dist., 105 Ark. 487. The trial court found that the lateral in question had not been abandoned by the commissioners. The record reveals that from thirty-five to forty per cent, of the work on this lateral has been done, and that the commissioners intend to complete it along with the other portions of the road when the finances of the district will justify them in doing so. Each commissioner gave testimony to that effect. The only testimony appearing in the record tending to show an abandonment of the lateral is unauthorized letters written by two of the commissioners to the State Highway Department in an effort to procure State and Federal aid. The letters indicated a purpose on the part of the commissioners to abandon the lateral, but we do not regard them as conclusive upon the point. The commissioners who signed the letters testified they did so without any authority from the board, and that they were entirely unofficial. The finding of the chancellor to the effect that the commissioners had not abandoned the construction of the lateral is in accordance with the weight of the testimony. No error appearing, the decree is affirmed.

Hart, J.

(dissenting). What was said in the dissenting- opinion in the case of House v. Road Improvement Dist. No. 2 of Conway County, ante, p. 330, applies with equal force to the facts presented by the record in this case, and need not be repeated here.

There is another phase of this case which, in. our judgment, requires us to voice our dissent in writing. In this case the majority of the court has announced the rule to be that it is only when it appears from the face of the act creating an improvement district, or other facts of which the court may take judicial knowledge, that the 'Courts will review the action of the Legislature in arbitrarily including lands in such districts.' It is true that in the cases cited in the majority opinion it appeared from the face of the act that they were arbitrary and discriminatory, and the court so stated in the opinion. This was but the statement of a fact as it appeared from the record, and by no means constituted, or was intended to constitute, a holding that the courts' would not review the action of the Legislature in establishing an improvement district, however arbitrary it might be, unless that fact was shown on the face of the statute itself, or by facts of which the court would take judicial knowledge. In cases of this sort the courts are not concerned about the method of proof. They are only concerned about whether -the proof has been made by satisfactory and competent evidence. The general rule .is that when, owing to peculiar or extraordinary facts established by satisfactory and competent evidence, the usual presumption in favor of the legislative act has. been overcome, the courts will interfere to prevent an illegal exaction from the landowner and a virtual confiscation of his property. If the Legislature has no power to arbitrarily include the land in an improvement district, the courts should interfere and grant relief when that fact is shown by any competent and satisfactory evidence.

It would seem that the majority opinion, by necessary implication, overrules the salutary principles of law announced in Louisiana & Ark. Ry. Co. v. State, 85 Ark. 12. In that case the court held that a legislative determination that a station should be erected and maintained at a certain point is conclusive, unless the courts can declare, as a matter of law, that such determination is arbitrary and unreasonable. In that case, proof was offered and rejected in the court below that there was no public necessity for the station and that the requirements of the legislation were so arbitrary and unreasonable as to demand a judicial review of the question. The court held that the rejected evidence was competent, and that for the court to refuse a consideration of it would be to deny the railroad company the equal protection of the law, and would, in effect, be depriving it of its -property without due process of law. ' In discussing the question the court referred to the fact that the Legislature has the power to determine for itself the boundaries of a local improvement district, but that the court had held that the power, when arbitrarily and unreasonably exercised, is not beyond judicial control.

The court approved the doctrine stated by the Supreme Court of the United States in Norwood v. Baker, 172 U. S. 269: “But the power of the Legislature in these matters is not unrestricted. There is a point beyond which the legislative department, even when exerting the power of taxation, may not go inconsistently with the citizen’s right of property.” The court said that this principle was applicable in the station ease. Continuing, the court said that it is a question primarily for legislative determination, and that determination should not be disturbed by the court unless the power has been exercised without reason. We see no reason why the arbitrary action of the Legislature might not be shown by any competent proof in that case, and should be limited to facts of which the court might take judicial knowledge in the present case. It may not be impertinent to add that no reason is attempted to be given for such limitation in the majority opinion.

The principle upon which the arbitrary action of the legislature in matters of taxation and special assessment may be reviewed by the court is well stated in Stuart v. Palmer, 74 N. Y. 183. In discussing the subject Judge Earl, speaking for the court, said: “The Legislature can no more arbitrarily impose an assessment for which property may be taken and sold, than it can render a judgment against a person without a hearing. It is a rule founded on the first principles of natural justice, older than written constitutions, that a citizen shall not be deprived of his life, liberty or- property without an opportunity to be heard in defense of his rights, and the constitutional provision that no person shall be deprived of these ‘without due process of law’ has its foundation in this rule. This provision is the most important guaranty of personal rights .to be found in the Federal or State Constitution. It is a limitation upon arbitrary power, and is a guaranty against arbitrary legislation. No citizen shall arbitrarily be deprived of his life, liberty, or property. This the Legislature cannot do or authorize to be done. ‘Due process of law” is not confined to judicial proceedings, but extends to every case which may deprive a citizen of life, liberty, or property, whether the proceeding be judicial, administrative, or executive in its nature. (Weimer v. Brueinbury, 30 Mich. 201). This great guaranty is always and everywhere present to protect the citizen against arbitrary interference with these sacred rights.”

With reference to the facts showing the arbitrary action of the Legislature, but little need be said. The undisputed facts show that the lands of appellant are separated from direct connection with the proposed road by lakes 'and brakes which are impassable. The evidence shows that it would not be practical to construct bridges ever this impassable way, and the only practical route for appellant to use the improved road is to leave her land and go upon adjoining lands in order to reach the road.

This brings the ease directly within the rule announced in Ruddell v. Rutherford, 145 Ark. 49, and other cases of like character.

We concede the general rule to be that, if the Legislature has fixed the boundaries of the district and laid the special tax or provided for a subordinate agency to do so, its action must, in general, be deemed conclusive. To invoke the intervention of a court against the result of its conclusion is to invoke judicial authority to give its judgment controlling effect over that of the Legislature in a matter of the apportionment of a special tax, and this can only be done where the legislative action is manifestly colorable and arbitrary. This is the basis of our holding in Ruddell v. Ruthford, supra.

In that case the Legislature eliminated section 18, and thereby determined that it was not benefited by the improvement. It included section 19 in the district, thereby concluding that it was benefited. It appeared, from a map introduced in evidence, that it was impractical to go from section 19 to that part of the district where the improved road was without passing through section 18-, Hence the statute was held to be arbitrary and discriminatory on its face.

The court was not concerned about the method of proof. Because the act on its face was discriminatory was not the fact which gave the court jurisdiction; The arbitrary and discriminatory action of the Legislature was what made the exception to the general rule and gave the court jurisdiction in the premises. This is illustrated by the case of Little Rock v. Katzenstein, 52 Ark. 107.

In that case the court held that the action of the city council in including property in an improvement district is conclusive of the fact that it is adjoining the locality to be affected, except when attacked for fraud or demonstrable mistake.

The court used the expression, a demonstrable mistake of fact, meaning, by this expression, a mistake of fact as to the existence of which there was no room for doubt. If no such limits exist, the power of local assessments would be but another means for arbitrary exaction, and in such cases the wrong must always be open to correction.

We also dissent from that paid of the opinion which holds that the action of the Legislature in fixing the boundaries of the district was not arbitrary. . We concede that the members of the Legislature are presumed to have, a general knowledge of the geography as well as the topography of the State. They are supposed to act upon this general knowledge and upon information furnished by the committees and other agencies selected by it. All'these are evidences upon which the Legislature acts. But here again there, is a well-known exception to the general rule, and that is that the Legislature can not act in an arbitrary or discriminatory manner in fixing the boundaries of a district.

In concluding the discussion, on this branch of the case, the majority opinion gravely adds that this court is firmly committed to the doctrine that improved roads must necessarily have termini and improvement districts boundaries. This is so in the very nature of tilings, but it does not follow that the Legislature can act arbitrarily in fixing the boundaries without its action being reviewed by the courts. There, as here, the testimony is all one way, and shows that the Legislature acted arbitrarily and in a discriminatory manner in fixing the boundaries of the district. The court should declare, as a matter of law, that the creation of the district was invalid and any assessments levied under it an illegal exaction. To hold otherwise is to deprive the landowner of his property without redress.

Justice Wood concurs in the views here stated.


author: McCulloch, C. J.

text:
    St. Louis-San Francisco Railway Company v. Gray.
    Opinion delivered April 23, 1923.
    1. Railroads — killing of animals — presumption of negligence. —Proof that animals were killed in the operation of a train raises the presumption of negligence, which the railway company has the burden to overcome.
    2. Railroads — injury to animals by train — evidence.—That animals were killed or injured in the operation of a train may he proved by circumstantial evidence.
    3. Railroads — injury to animals — evidence.—Evidence held sufficient to warrant the inference that animals found dead or injured near a trestle were injured in the operation of a train.
    4. Railroads — injury to animals — evidence.—Whether trainmen’s testimony was sufficient to overcome the presumption of negligence arising from proof that animals found dead or injured near a railroad trestle were killed or injured in the operation of a train, held for the jury, in view of conflicting testimony for the plaintiff.
    Appeal from Poinsett Circuit Court; W. W. Bandy, Judge;
    reversed.

      W. F. Evaits, W. J. Orr & E. L. Westbrooike, foir appellant.
    There is no evidence to support the verdict. The' proof does not raise the presumption of negligence of defendant in the operation of its train. Sec. 8.574, G. & M. Digest. If there was a presumption of negligence, it was overcome by uncontradicted testimony of the trainmen. 67 Ark. 514; 78 Ark. 234; St. L. S. W. By. of Texas v. Coleman, 238 S. W. 366.

      T. E. Allyn, for. appellee.
    It was shown that the animals were killed and injured because of appellant’s negligence in failure to keep a lookout. Sec. 8568, Crawford & Moses ’ Digest. Appellant insists there is no evidence to show stock killed or injured by running of trains under rule announced in 80 Ark. 72. In this he is mistaken, since the testimony is ample on this point. 80 Ark. 72. It makes no difference that the evidence was circumstantial, and the verdict is sustained by it. 99 Ark. 372; 138 Ark. 308; 81 Ark. 35; 48 Ark. 495 ; 57 Ark. 577; 51 Ark. 330; 24 Ark. 252; 90 Ark. 100.
   McCulloch, C. J.

This is an action instituted by appellee to recover the value of three head of stock alleged to have been killed by servants of appellant in the operation of a train. The verdict was in favor of appellee, and appellant seeks a reversal of the judgment on the ground that the evidence is not legally sufficient to support the verdict.

The animals in question were injured in Poinsett County, near the town of Marked Tree, which is located on appellant’s line of railroad about a half-mile south of the bridge across St. Francis River. There is another trestle a short, distance south of Marked Tree. The railroad is built along a dump about fifteen of eighteen feet high.

Appellee owned a farm near Lepanto, in St. Francis County, where he kept his stock, and, according to the •testimony of Campbell, appellee’s manager on the farm, four head of stock — a mare, a horse, and two mules— passed out of an open gate and wandered away. The manager testified that he went in search of the animals, and found them at Marked Tree, two of them, a horse and a mule, dead on the right-of-way, near the railroad track, on each side of the trestle south of Marked Tree, and the other two just north of the St. Francis River, the mare with her leg broken, and the other mule with his leg skinned. The suit is to recover damages for the loss of the horse and mule -killed at or near the bridge south of Marked Tree, and for the mare found with a broken leg near the St. Francis River bridge north of Marked Tree.

The precise length of the bridge south of Marked Tree is not stated, but the witnesses referred to it as a long bridge.

• There was testimony introduced by appellee to the effect that horse and mule tracks were found south of the long bridge, and also south of the St. Francis River bridge, going towards those bridges, and that the tracks indicated that the animals were going very fast when they passed along there. There was a path under the long bridge. The theory of appellee is that the animals were driven onto the bridge by taking fright at the approaching train, and that the servants of appellant were’ guilty of negligence in failing to keep a proper lookout and exercise care to prevent injuring the stock. On the other hand, the theory of appellant on the trial of the cause was that the animals wandered out on the bridges, and, there being no walkway, but only ties, with open spaces between, the animals fell into the spaces between the ties and were thus injured.

It is conceded that the animals were seen on the bridges just before daylight, and were first discovered by the crew of a freight train traveling noith. The trainmen testified that, as they approached the long trestle south of Marked Tree, they saw by the rays of the headlight two animals near the north end of the trestle ;• that one of the animals was seen to jump off the trestle; that the other animal was found with its legs down between the ties, and that the men procured bars and prized the animal’s legs out, and that when they got the animal up on the trestle it struggled and fell over to the ground. These were the two animals that were found by the side of the trestle by Campbell, appellee’s manager. Campbell testified that when he got there they had buried the horse and were burning the body of the mule. He testified that both of the animals were on the right-of-way at the time, and that there was a hole as big as his head knocked in the mule’s back.

The trainmen testified that they proceeded on the journey and stopped at Marked Tree a short time for train work and to get water at the tank, and then moved on up at a slow rate of speed, and, as they approached the bridge over the St. Francis River, two more animals were found near the north end of the bridge, down on the track, with their legs between the ties. They testified that they backed the train up to Marked Tree and procured lumber and laid a walkway on the bridge, prized the animals out, and walked them off the end of the bridge. They stated that the mare’s leg was only skinned, and that she walked along as they led her off the trestle. Appellee’s manager testified that the mare’s leg was broken. There was testimony introducd by appellant also to the effect that the tracks of the animal were seen going from the north toward the end of the bridge south of Marked Tree, and also that tracks of the animal were seen as if entering upon the bridge from the north end.

Proof that animals are killed in the operation of trains raises the presumption of negligence, which the railway has the burden to overcome, and this proof may be made by proof of circumstances which warrant the inference that the animals were killed or injured in the operation of the train. St. L. I. M. & S. Ry. Co. v. Stites, 80 Ark. 72.

The testimony is sufficient, we think, to warrant the inference that the animals were injured by the operation of a train. As to the two which were injured at the long bridge south of- Marked Tree, they were seen by the trainmen on the bridge; one of the animals jumped off the bridge at the approach of the train, and the other was prized up and then fell off the bridge. One was evidently killed in jumping from the bridge, and the other was killed as it was being extricated by falling off the bridge. The jury might have found that the predicament of each of these two animals was caused by negligence of the trainmen in failing to discover their presence on the track and taking steps to avoid frightening them until they ran onto the trestle. There is evidence that the tracks were made approaching the south end, and this is in contradiction of the testimony of the witnesses who said that there were tracks approaching from the north side. Then the jury might have reached the conclusion that it was unreasonable to believe that the stock would go upon a trestle where there was no walkway, and that it was more reasonable to believe that they were driven onto the trestle by fright. If it were true that the injury was caused in this way, the burden rested upon appellant to overcome the presumption of negligence. The same may be said with reference to the animals that were seen on the St. Francis bridge north of Marked Tree.

The testimony of the trainmen tends to show that they were not guilty of any negligence, and it is urged that the jury had no right to arbitrarily reject the testimony. "We do not think, however, that the testimony is so clear and consistent that the jury was bound to believe it. In some respects it was in conflict with the testimony introduced by appellee, and we think it was a question for the jury to determine whether or not the evidence was sufficient to overcome the presumption of negligence.

The question of the. legal sufficiency of the evidence is the only one raised, and, since we have found that the evidence was sufficient to support the verdict, it follows that the judgment must be affirmed, and it is so ordered.


text:
    Dillinger v. Lee.
    Opinion delivered April 23, 1923.
    1. Brokers — right to commission. — In the absence of a special contract providing otherwise, an agent employed to sell, or find a purchaser for, land earns his commission and is entitled to recover the same when he procures a purchaser ready, willing and able to buy upon the terms named, and the principal enters into a binding contract with the produced purchaser, or, having an opportunity to do so, declines to accept the pur* chaser.
    2. Brokers — right to commission. — Where the contract of brokers was, not that they must sell or exchange the land in order to earn a commission, but that they should have ,a commission for finding a purchaser or bargainer who was ready, able and willing to take the property upon the specified terms, their commission was earned when they produced such purchaser ready, able and willing to take the property as agreed, although no enforceable contract was ever entered into.
    8. Evidence — parol evidence of collateral writing. — The rule prohibiting parol evidence of the contents of a writing does not prevent the introduction, in a suit for a broker's commission, of evidence that the broker’s principal had entered into a written contract to sell the land for which the brokers were employed to find a purchaser, such writing being merely collateral to the issue.
    Appeal from Benton Circuit Court; W. A. Dickson, Judge;
    affirmed.

      Sullins Ivey, for appellant.
    Court erred in not requiring appellee to make its complaint more specific and set out whether the contract for sale of the lands was oral or written. 112 Ark. 566. The contract entered into with the prospective purchaser was not enforceable. 85 Ark. 1, 107 S. W. 160; 136 Ark. 447. Court should have directed a verdict for appellant. 89 Ark. 289.

      Lee Seamster and W. 0. Young, for appellees.
    Appellees not required to have purchaser enter into an enforceable contract to earn their commission, appellant having refused to perform the ¡contract. 145 Ark. 262; 84 Ark. 462; 131 Ark. 576; 149 Ark. 118; 141 Ark. 565; Verdict is sustained by the testimony. 228 S. W. 49.
   McCulloch, C. J.

Appellees instituted this action against appellant to recover a sum of money alleged to be due for commission on exchange of real estate owned by appellant. The parties all live in Bentonville, and appellant owns a farm, consisting of a little' over sixty-one acres, situated a few miles distant from Benton-ville. Appellees contend, and alleged in their complaint, that appellant listed the land with them for sale or ex^ change, and agreed to pay a commission for finding and producing a purchaser, or one who would exchange other property upon terms acceptable to appellant. They alleged that they found one who would exchange for the property in the person of a Mr. Haskins, who lived in Missouri, and owned a farm near Marysville, Oklahoma; that they brought the parties together, appellant and Haskins, and that they agreed upon terms of exchange of their respective properties, and entered into a written contract with reference thereto, but that appellant refused to carry out the contract, and also refused to pay a commission. They alleged that, as soon as the contract was entered into between appellant and Haskins, appellant agreed with appellees upon a commission of $400 to be paid to them.

Appellant denied in his answer all the allegations with respect to the listing of the land with appellees for sale or exchange, or with respect to the alleged agreement to pay a commission of $400.

There was a trial of the issues before.a jury, and the verdict was in favor of appellees for the amount of commission claimed.

The principal contention here for reversal of the judgment is that the evidence is not sufficient to sustain the verdict, in that it shows beyond dispute that the written agreement between appellant and Haskins did not constitute an enforceable contract. It is not essential to the recovery of commission that there should have have been an enforceable contract, as will be shown later in this opinion.

In testing the legal sufficiency of the evidence to sustain the verdict we must, of course, view it in its light most favorable to appellee. They testified that appellant listed the land with them for sale or exchange, and agreed to pay a commission, and that they produced Mr. Haskins as a prospective bargainer, and showed him appellant’s farm, and, after looking over the farm, Haskins entered into negotiations with appellant, and they reached an agreement for exchange, and, after going back to Bentonville, they went to the office of an attorney, Mr. Young, to have a contract drawn up. The contract, which was prepared in accordance with their agreement, recited the terms of the exchange, described each of the properties and the estimated value thereof, and specified when the conveyances would be executed and when possession could be delivered. The contract stated three separate conditions of its enforcement. The first one was that Haskins ’ farm was represented to contain 250 acres of “smooth prairie,” and if, upon investigation, appellant found that it did not contain that quantity, he was not to be bound by the contract. The next was that-each party should assume the incumbrances on the farm received in exchange and make arrangements -to have the incumbrances on the other property relieved, and if this could not be done the contract should fail. The last condition was that if the improvement on the land should be destroyed the"contract should not bind either party, After the preparation of the contract by Mr. Young, Háskins took it into his possession, and went back home with it, and signed it the next day and returned it. Thereafter appellant refused to sign the contract, and, according to the testimony, made an effort to sell the land to another party or to exchange it.

There is no proof tending to show that the Haskins land does not come up to the representation, but there is evidence to the effect that arrangements were made to pay off the incumbrance on the farms. In other words, the evidence is sufficient to justify a finding that Has-kins was ready and willing to- comply with the agreement, but that appellant refused to carry it out. Under those circumstances, appellees are entitled to their commission.

The issues were submitted to the jury upon instructions given by the court, which were not objected to, or at least were not referred to in the motion for new trial. Appellant asked for instructions which would have told the jury peremptorily that there was no right of recovery because the contract between appellant and Haskins was not enforceable. The court pr'operly refused to give these instructions, for the reason that they were not applicable to the issues involved in this case.

Appellees alleged, and introduced testimony to prove, that they were to receive a commission upon producing a purchaser ready, willing and able to purchase or exchange for the property of appellant, and that they produced one who was accepted by appellant upon terms to which he agreed. We have stated the law to be that, “in the absence of a special contract providing otherwise, an agent employed to sell or find a-purchaser for land earns his commission and is entitled to recover the same when he procures a purchaser ready, willing and able to buy upon the terms named, and the principal enters into a binding contract with the produced purchaser, or, having an opportunity to do so, declines to accept the purchaser.” Reeder v. Epps, 112 Ark. 567; Moore v. Irwin, 89 Ark. 289; Wales-Riggs Plantations v. Pumphrey, 141 Ark. 565.

This rule of law would, of course, not be applicable under a different state of facts, but here we have a case supported by evidence that the agreement was to pay a commission upon the production of a purchaser or one who would exchange property upon acceptable terms, and that such a person was produced who was ready, willing and able to exchange on terms satisfactory to the appellant.

Conceding that no enforceable contract was entered into between appellant and Haskins, still this does' not affect the right of appellees to a commission, for they had complied with their part of the contract by producing a bargainer ready, willing and able to take the property on terms which ■ were satisfactory to appellant. In other words, appellant’s contract with appellees was not that they must sell or exchange the land in order to earn a commission, but that they should have a commission for finding a purchaser or.bargainer who was ready, willing and able to take the property on the specific terms.

It is also contended that the court erred in permitting appellees to prove by the witness Vaughan that appellant had entered into an agreement with him (Vaughan) for the exchange of this property. This testimony was competent as tending to show that appellant abandoned the trade with Haskins before time and opportunity had been afforded to comply with the contract. Nor was it error to permit Vaughan to testify without producing his written contract. The writing itself was merely collateral to the issue in the present, case, and it was competent to prove by oral testimony the fact that appellant had entered into a contract with Vaughan for the sale of the property. No rule of evidence was violated in permitting this to be proved orally instead of by a production of the written contract.

The conclusion we have reached therefore is that there is no error in the record, and that the evidence is sufficient to sustain the verdict.

Affirmed.