Nettles v. Hazelwood Road Improvement District No. 2

McCulloch, C. J. This case involves an attack on the validity of a road improvement district in Greene County created by a special statute (Act No. 126, regular session of 1939) and the proceedings of the board of commissioners and assessors under authority of that statute. The statute in question creating the road improvement district describes the boundaries and the roads to be improved and names/ the commissioners. The roads to be improved are described as public roads and the route is mentioned in detail. It contains authority for the improvement and for assessment of benefits and the borrowing of money. Section 10 of the statute provides, in substance, that when the assessors are appointed by the board of commissioners, they shall make an assessment of benefits and file the lists with the chairman of the board of commissioners, and said chairman shall give twenty days’ notice in a weekly newspaper of a public hearing as to the correctness of tlie assessments, and that the assessors shall meet at the time and place mentioned in the notice for the purpose of hearing complaints of landowners, and that any errors or wrongful assessments will be adjusted on petition of landowners who are aggrieved by the assessments. It provides further that any landowner “aggrieved by the action of the board of assessors fixing the assessment, as herein provided, shall have the right for twenty days from the date of adjournment of said board of assessors sitting as a board of equalization as aforesaid to appeal from their decision to any court of competent jurisdiction to set aside said assessment list or to correct any void or erroneous assessment thereon; but after the expiration of the said twenty days the said list shall become final and incontestable either at law or in equity.” It appears from the allegations of the complaint that the assessments have been made by the board of assessors, and it is alleged in the complaint that the assessments are confiscatory by reason of the fact that the lands in the district are situated in numerous other improvement districts, that many of the farms are under mortgage, and that the interest on the mortgages and the assessments levied on these lands for various improvements, including this one, together with taxes, State and county, school and other local taxes, will amount to more than the income derived from the lands. It is also alleged in the complaint that a portion of the road to be improved is “covered with water, varying in depth from a few inches to ten or more feet,” and that the condition just described prevents the construction of the improvement. It is also alleged that a certain drainage district which would drain this area has been declared to be illegal and void, and that this frustrates the scheme to improve the roads by reason of the fact that the improvement in this district was intended to drain these particular lands. The chancery court sustained a demurrer to the complaint, and an appeal has been prosecuted to this court. Several of the points of attack have been definitely settled by previous decisions of this court. The contention that the authority to maintain the road, as well as its construction, is an encroachment on the jurisdiction of the county court was settled in the recent case of Dickinson v. Reeder, 143 Ark. 228, and the contention that the authority conferred on the commissioners to construct the public road constitutes an invasion of the jurisdiction of the county court is settled by decisions of this court too numerous to mention. The statute now under .consideration is not different in any substantial particular from the statutes in the other cases thus decided. It is earnestly argued in the next place that the act is void because it places no limitation upon the power of the assessors with respect to the amount of benefits assessed. The answer to this is that the statute only confers authority upon the assessors to appraise the value of the actual benefits, and a remedy is afforded against any abuse of thát power. A public hearing is provided for after notice, so as to give every property owner a hearing before the board of assessors, and in addition to that a specified time is given for review of the assessments in a court of competent jurisdiction. We recently held that the chancery court has jurisdiction in such cases. Monette Road Imp. Dist. v. Dudley, ante, p. 169. With these safeguards thrown around the action of the board of assessors it can not be said that the statute fails in any way to meet the requirements of the Constitution in regard to due process of law and the proper recognition of the rights of property. The attack upon the correctness of the assessments must fail because the action was not instituted within the period of time prescribed by the statute. We have upheld a similar statute as to the length of time given and as to the provision concerning the application to the court for relief. Reitzammer v. Desha Road Imp. Dist. No. 2, 139 Ark. 168. The allegations of the complaint were not sufficient to show that no benefits at all would accrue to the lands, but the allegations amount merely to an assertion that the assessments are grossly excessive. The remedy authorized by the statute must be pursued, that is, by appearing before the board of commissioners and thence to the chancery court within the time specified by the statute. The last attack is the one embraced in the allegation'that “eight or ten miles of the proposed road is covered with water varying in depth from a few inches to from eight to ten feet or more, and that it is a physical impossibility to build or construct, under any circumstances, any improved road upon that part of the established route.” This allegation must be viewed in the light of the statute itself, which described the roads to be improved as established public roads, and it is a mere statement of a conclusion to say that on account of the water over a portion of the road it can not be improved. There may be methods of diverting this water from the roadbed, and there is a failure to set forth a state of facts which would negative the feasibility of adopting such a plan. It is reasonable to assume that a public road established and maintained under orders of the county court is subject to some kind of improvement, and authority is conferred by this statute upon the board of commissioners to take the necessary steps to improve the roads. This does not embrace authority to provide general drainage for the district, but it embraces authority incidentally to drain the .roadbed if it is feasible to do so as a part of the project of improving the road. At least it is not shown by the allegations of the complaint that this can not be done. Nor does the fact that the drainage district embracing a part of the road district was declared invalid prevent the commissioners from proceeding with the improvement authorized by this statute, as it is not shown by the allegations of the complaint that the carrying out of that improvement was essential to the construction of the one authorized by this statute. The fact that the special statute creating said drainage district declafed that its purpose was to provide a method for draining the water from submerged sections of this road and its environs does not constitute a legislative determination that the road can not be improved without the drainage district first being put into operation. We are therefore of the opinion that the statute is not void, and that the allegations of the complaint do not justify the interference by a court of equity with proceedings authorized by the statute. Affirmed.