Nall v. Kelley

McCulloch, C. J. The Legislature at the 1915 session -enacted a special statute creating ta read improvement district in Grant County (Act 48, p. 136, Acts 1915), embracing a considerable portion of lands of that county and authorizing the beard -of commissioners to improve a -certain public road known as the Pine Bluff, ¡Sheridan land Hot 'Springs road. That road runs clear across the county /and passes ¡through the incorporated town of Sheridan. The statute provides a complete scheme for the organization of the district, the formation -of plans for the improvement, the assessment of benefits, and for the construction of the improvement 'and enforcement -of payment of the improvement tax. It appears from the allegations of the complaint in this action that the board of improvement has effected an -organization in accordance with the ¡terms of the statutes -and are attempting to carry out. the provisions of the statute. This is- an action instituted by a property owner in the district to -enjoin the board from proceeding with the construction of the improvement, the levying of assessments land the issuance -of bonds. The cause was heard upon an agreed statement of facts and the depositions of witnesses, and the ¡chancellor, on a hearing -of the cause, dismissed the complaint for wiant of equity. The complaint in the ¡case seems to have been framed s-o as to constitute an assault upon the validity of the whole statute, section by section, and all of the- proceedings ¡of the board, but we must treat -as abandoned all of the assaults except the -ones that are made in the briefs of counsel filed in this court. (1) In the- first place it is contended that the act is v-oid because it includes property in an incorporated town without -obtaining the consent of the majority in value of the property owners. This contention may be ¡disposed of by merely ¡citing several of our decisions where we held that the provision of the Constitution with reference to improvement districts entirely inside of cities and towns has no application to districts covering territory not wholly within the city limits of a municipality. Butler v. Board of Directors of Fourche Drainage District, 99 Ark. 100; Alexander v. Board of Directors of Crawford County Levee District, 97 Ark. 322; Cox v. Road Improvement District, 118 Ark. 119. (2-3) lit is also contended in this connection that the statute invades the jurisdiction of the municipality iby .authorizing the improvement of a highway which constitutes one of the streets therein. In the case of Cox v. Road Improvement District, supra, we expressly pretermitted lany discussion of that question for the reason that none of the improvements involved in that case were to he made within the corporate limits of the town of Keo, though the property in the town was to he assessed. It is very plain, however, that the inclusion of a street is not an invasion of the authority and jurisdiction of a municipality for the reason that the purpose of this statute is merely to provide for improving the street and not to take away from the municipality the control thereof. This question is ruled hy the case of Pulaski Gas Light Co. v. Remmel, 97 Ark. 318, where we decided that 'an urban improvement 'district formed under the general statutes of the State acquired no control over .streets except for the purpose of making the improvement. The principle is the same whether the improvement district has been created in a city or town under the general statutes or whether hy a special statute creating a rolad improvement district embracing property both in and outside of a .city or town. It is ¡clearly within the power of the Legislature to ¡authorize the property owners to improve a street or highway, either inside or ¡outside of a municipality, without invading the jurisdiction of either the municipality or the county court. We have held that the Legislature may create improvement districts authorizing the improvement of public highwajm, and that such proceeding does not invade the jurisdiction of the county court. Road Improvement District v. Glover, 89 Ark. 513. Our conclusion therefore is that there is no basis for the contention that the act is void on either of the grounds just stated. (4-5) .Section two of the. act describes .the read by name as “the Pine Bluff, Sheridan land Hot Springs Boiad,” and also specifically describes the route along which the road runs. Then follows the provision that the improvements “iare to 'be imlade on the read as now laid out by the county court in Grant county, or substantially on this line, the nature of the improvements 'and any dhlange in the line of siaid road to be .approved by the county court of Grant county, Arkansas.” That .section also provides that the improvement “is to ibe constructed of macadam or of' such other material as the commissioners may deem best.” There is no basis for the contention that the description of the route is too uncertain, for the act does not lauthorize any substantial deviation from the particular line described. Whether a .substantial deviation under those provisions would invalidate the proceedings, we iare not called on to .decide, for it is plain that only slight deviations are .authorized and those are to be approved by the county court. Nor is it necessary for us- to determine how far ‘the board of commissioners may deviate from the specifications as to the material to be used and how far they could go in adopting other material not of the same general .character as that which is used in constructing a macadam road. There appears to. be no valid reason wby the Legislature cannot confer upon a board of improvement plenary power in the matter of selecting the materials as well as forming the plans for the improvement. What we said in the recent case of Cox v. Road Improvement District, supra, (about the necessity for certainty in the specification of the character of the improvement, does not apply, for the reason that there is no requirement in this statute for a petition of landowners, and therefore ia legislative specification of the character of improvement is not necessary. Nor does the decision in Swepston v. Avery, 118 Ark. 294, 177 S. W. 424, have any bearing here, for the reason that the .statute in that case provided for an arbitrary assessment of benefits in proportion to the value of the land, whereas in the present case the governing statute ¡authorizes an assessment of ¡benefits based upon the character of the improvement after it has. ¡been 'determined upon. (6) ¡Section ¡eight of this'statnte provides that after the hoard shall have' formed plans for the improvement ¡and ascertained the cost ¡thereof, “if they deem it expedient to. make said improvement, they ¡shall appoint three electors of the ¡county, who shall constitute a hoard for the assessment of the benefits to ¡be received,” etc. This provision is not -found in ¡any statute which has come before this court for review, ¡and presents a new question. It is contended that the provision 'Constitutes a delegation of legislative authority to the board of improvement. After careful consideration of the question, we are, however, of the opinion that the provision does ¡not constitute a 'delegation of legislative authority, but that it -comes within the rule announced by this court that while the Legislature cannot delegate power to make laws, “it can make a law to delegate the power to determine some facts or state of things upon which the law makes or intends to make its own action depend.” Boyd v. Bryant, 35 Ark. 69. This statute, it will be observed, is completely put in force by the Legislature, and nothing is left to the hoard so far as completing ¡the enactment. It only delegates to the board the authority of determining the extent to which the proceedings may go towards the construction of the improvement. Tihe improvement district itself is created by the statute and the board of improvement is ¡named for the purpose of carrying out the provisions of the statute. The hoard is clothed with complete authority, not only to perform the preliminary acts but to construct the improvement and assess benefits and collect taxes, etc. There is -a mandatory direction to the board to organize itself ¡by the election of officers, ¡and to employ engineers and form plans for the improvement. At ¡this point the board is, authorized, before incurring further expense, to determine whether or not it will be expedient to make the improvements; and this is not a delegation of legislative authority, but power to ascertain the fact whether or not the plan for the improvement is feasible and shall be consummated. Of course, there is a further limitation upon the power of the board to proceed, in that the benefits must be ascertained to be equal to the cost of the improvement. But it was the purpose of the lawmakers to provide for an ascertainment by the board in advance of the assessment of the benefits whether or not the plan to construct the improvement is feasible, or, to use the exact language of the statute, to determine whether or not it is “expedient to make said improvement.” ' , (7) 'Counsel for defendants have cited many cases on their brief which sustain the view that this is not a delegation of legislative authority. The true test, approved by many courts in accord with the rule announced by this court in Boyd v. Bryant, supra, is stated by the Supreme Court of Ohio in Cin., Wilmington & Zanesville Railroad Company v. Commissioners, 1 Ohio State 77, as follows: “The true distinction is between the delegation of power to make the law, which necessarily involves the discretion as to what it shall be, and conferring authority or discretion as to its execution to be exercised under and in pursuance of the law. The first can not be done. To the latter no valid objection can be made. ” The drainage laws of this State constitute the county court as the tribunal for determining the expediency of such an improvement in a given locality, and we can see no reason, from the standpoint of constitutionality, wfhy the Legislature can not create, even in a special statute, a tribunal, consisting of the members of the board of improvement, to determine the feasibility of the improvement to be undertaken before unnecessary expense is incurred. It is not essential that the lawmakers themselves shall first determine the feasibility of the improvement. The passage of the statute presupposes ¡a legislative determination as to the necessity for the improvement, or at least as to its desirability, but there is no reason why the 'lawmakers should not delegate to a special tribunal the further authority of determining its expediency before incurring considerable expense towards its construction. The statute therefore is not open to the objection that it constitutes ia delegation of legislative authority. (8) There is also a contention that the proceeding is void because one of the commissioners named is not the owner of property except inside the town of Sheridan. There is no force in that objection, even if the act required the commissioners to be 'landowners, for, as we have already said, it was within the power of the legislature to include the town within the limits of the district, and if a commissioner owned land inside of the district he was qualified. The statute, it is true, provides that commissioners who are to succeed those named in the statute at the expiration of their terms, shall be property owners within the district; but the statute names certain individuals who are to constitute the first board of improvement, and there is no specification as to their qualification. Therefore, the question cannot arise whether or not they are property owners. (9) Nor is there anything in the contention that the act is void because it fails to provide for the commissioners to take an oath of office. The statute is silent on that subject, though it contains an express provision that the commissioners “shall organize by electing one of its members as president and by electing a secretary and treasurer.” The members of the board are not officers within the meaning of the provision of the Constitution (art. 19, sec. 20), requiring all officers, both civil land military, to take .and subscribe to a certain oath before entering upon the discharge of the duties of their office; but if it were to be held that that provision did apply, there is nothing in this statute in conflict with it, even though it contains no requirement for taking the oath. If the commissioners were public officers, it would be their duty to take the oath in conformity- with the Constitution, without any express provision of the statute to that effect. Finally it is urged, with considerable earnestness, that the evidence shows that the assessment of benefits is invalid on account of the lack of uniformity, .and for other reasons. The case was, as before stated, tried upon an agreed statement of facts and the depositions of witnesses. The depositions of two of the assessors were ¡taken, and it appears that they exercised their judgment fairly and that the state -of the proof is such that we can not say that the .assessments are unreasonable or that they lack uniformity. It is contended further that .according to the statement made by one of the assessors, they made their assessment without .any reference to the cost of ¡the improvement and without having the plans before them. It appears, however, from a preponderance of the testimony in the case that the plans for the improvement had been formed before the assessment was made, • and that those plans were laid before and considered by the board in making ¡the .assessment. In other words, the preponderance of the testimony is against the contention of appellants on the issue made concerning the validity of the assessment. This disposes of all the attacks made here on the vialidity of the statute, -and of the proceedings,'and it follows from what we have said that the decree of the chancellor dismissing the complaint for want of equity should be affirmed. It is so ordered.