Cumnock v. Alexander

SMITH, J., (after stating the facts). It is always a question of fact, and, in a large measure, a matter of opinion, as to what lands will be benefited by a particular improvement. Reasonable minds may, and do, differ on this question, and that difference continues to exist when the question of the amount of benefits is reached. ' Some one must be authorized to decide these questions, for it is inconceivable that there should ever be, or could ever be, unanimity of opinion upon a subject affording so wide a scope for difference of opinion. The Legislature has control of this subject, and it may appoint such agencies to make these findings as it sees proper to create, or it may make the findings on its own account, and when these findings have been made and have been properly declared in the recitals contained in legislative enactments the courts are bound thereby except for arbitrary or obvious and demonstrable mistakes. A number of cases have thus announced the law and what we have just said disposes of the last recited objection of the amici curiae, that the question of benefits is a judicial, and not a legislative question. Indeed, it is conceded that this court has frequently so decided, and we decline to overturn this line of cases. Applying, this test, we are unable to say that an obvious and arbitrary discrimination against Little Rock has been made. We can not say, in the face of the affirmative finding by the Legislature, that Little Rock will derive benefits from the construction of roads which are on the opposite side of the river, that no such benefits will be derived, for the city of Little Rock has direct connection with these roads over the free bridge across the river. It may be true that Little Rock will not derive as much benefit from the roads on the opposite side of the river as from those on its own side; but that is a question of fact about which we are not called upon to express an opinion. This question of benefits is one to be considered by the assessors, when the betterments are. assessed, and does not arise on this appeal. The contention that the act is an invasion of the jurisdiction of the county court is one which received deliberate consideration by the court in the recent case of Sallee v. Dalton, 138 Ark. 549, where a somewhat similar statute was under construction; and while the judges have differed, and do differ, upon this question, the majority are of the opinion that the act is not open to that objection. Sections 6 and 7 of the act make the plans for the improvement subject to the order and judgment of the county court, and if that court should disapprove the plans of any or all of these sections that district or those districts whose plans were disapproved could not be constructed. These sections are in fact separate districts, and it is made the duty of the county court to pass upon the plans of each of them. By section 5 it is provided that “if, for any reason, the improvement of one or more of the sections of said road as hereinbefore defined am^L numbered can not be carried out, it shall be the duty'of the commissioners to improve the remaining sections in the manner herein set forth.” Indeed, the third objection to the act contained in the statement of facts is that separate districts are required to prorate certain expenses. The portion of the act upon which this objection is based reads as follows: “The general expenses of the district inuring to the benefit of all sections shall be borne by the several sections in the proportion that the cost of the construction work in each section shall bear to the total cost of the construction work in all sections, and contributions from county, State and Federal aid shall be divided among the several sections according to its proportion insofar as this may not be altered by the law under which the contributions are made.” We think, however, that no legislative purpose is manifested to have one section bear any portion of the cost of any other section, for the expenses to be borne and prorated by all the sections are only “the general expenses of the district inuring to the benefit of all sections.” These sections constitute separate improvements, yet they are so closely related that certain expenses will be common to them all and to effect a saving to each section it is provided'that this common expense shall be apportioned according to the cost of the construction work. We see no constitutional objection to this arrangement. The objection that some new road may be improved is not well taken because this can not be done without the approval of the county court. In those cases in which this court has held that new roads could not be constructed we have done so because the burden of maintaining these roads after their completion could not be imposed upon the county over the objection of the county court. 'But if the county is willing to assume this burden and the court having jurisdiction over the subject-matter approves plans for the construction of some new road which will eventually become a part of the county’s highways, we see no constitutional objection to changing the route of an old road or of opening up and improving a new one. The objection that both streets of a city as well as rural roads may be improved is not a valid one, and is met by the opinions in the cases of Nall v. Kelley, 120 Ark. 282, and Tarvin v. Road Imp. Dist., 137 Ark. 354, 209 S. W. 81, and Bennett v. Johnson, 130 Ark. 507. The act can not be held invalid because certain Lonoke County lands which are not taxed may be benefited. Improved roads must have termini, and the districts which are to bear the cost of their construction must have boundaries, and we can not say that the Legislature has acted arbitrarily in failing to extend the boundaries of this district into a county into which the improved road does not penetrate. The objection that the act offends against section 2 of article 12 of the Constitution must be considered as having been settled against the contention of the amicus curiae who makes that objection by the opinion of this court in the case of Carson v. St. Francis Levee District, 59 Ark. 513. Counsel ask us to reopen the question there decided; but inasmuch as that case was vigorously contested and was presented with great zeal and ability, and has since been regarded as one of the landmarks in our jurisprudence, and has been looked to as authority for the creation of numerous levee, drainage and road districts, we decline to reconsider the question here sought to be raised. We need not consider here the validity of those sections of the act which provide for the appointment of a receiver and grant immunity to the commissioners except for wilful misconduct, for if those sections were stricken from the aet a valid working statute would remain, and by section 29 of the act it is provided that “if any provision of this act is held to be invalid it shall not affect the remainder of the act.” * * * Snetzer v. Gregg, 129 Ark. 542; Sallee v. Dalton, 138 Ark. 549. We are required to resolve all doubts in favor of the constitutionality of legislative enactments, and when we have done so we are constrained to hold that the act is not unconstitutional in any of the particulars mentioned, and the decree of the court below to that effect is, therefore, affirmed.