Payne v. Road Improvement District No. 1

McCulloch, C. J. Appellants are owners of separate tracts of land within the boundaries of Road Improvement District No. 1 of Howard County, and they appeared in the county court and made objections to the assessment of benefits on said lands. There are two of the cases in which a protest was filed, and in each case the, county court found that none of the lands of appellants would be benefited by, the construction of the improvement and. annulled the assessment of benefits thereon. The commissioners of the district prosecuted an appeal to the circuit court in each case, and in that court the two cases were consolidated and tried as one. The consolidated cases were heard on the pleadings and oral testimony, and a judgment was rendered, from which each side has prosecuted an appeal to this court. It is contended in the first place that the appeal to this court prosecuted by the commissioners of the district is unavailing for the reason that no motion for a new trial was presented to the court in apt time and overruled. Since the transcript was lodged here by the appellants, there has been an additional record brought here of proceedings of the trial court on an adjourned day of the same term at which the original judgment was entered, amending the record so as to show that a motion' for a new trial was filed and overruled and time given for filing a bill of exceptions. Appellants invoke an application of the rule established by the authorities that after an appeal has been granted a trial court has no jurisdiction to take further proceedings in a cause. This rule can not be applied so as to deny the trial court’s jurisdiction to consider the application for a new trial of a party other than the appellant. The statute fixes the time within which motions for new trial may be presented and considered by trial courts, and it is within the discretion of trial courts to extend the time to a date within that term of court. Where both parties to litigation are aggrieved by the judgment, each has a right to prosecute an appeal and take necessary steps leading up to it within the time prescribed by the statute and the order of the -court, and one party can hot deprive the other of any of his rights by a hasty appeal. ■ The motion for.new trial in this case was filed by permission of the trial -court during the term at which judgment was rendered, and therefore, on the overruling of the motion, the commissioners of the district had.the right to prosecute an appeal to this court, notwithstanding- the fact that appellants had theretofore completed their appeal by lodging a transcript in this court. We are of the opinion, therefore, that both appeals are properly before this court with bills of exceptions which constitute a complete history of the trial below. This improvement district was originally created by an order of the county court of Howard County, entered on October 7, 1918, pursuant to the general statutes of the State authorizing the creation of road improvement districts. Crawford & Moses ’ Digest, § 5399 et seq. The lands within the district were properly described in the order of the county court and in the petition therefor, but the order contained the following recital in regard to certain lands described in the petition: “It being hereby agreed by the parties owning lands hereafter described,, their attorneys and the attorneys for said road improvement district, because of the topographical location of the said lands, no benefits are to be assessed against the said property for the road improvement district, towit: The south half of sections 8, 9, and 10, and all of sections 14, 15, 16, 17 and 18, all in township 8 south, range 28 west.” The General Assembly at the regular session of 1919 enacted a statute, approved February 22, 1919 (Yol. 1, Road Acts, page 201), curing all irregularities and errors in the organization of Road Improvement District No. 1 of Howard County, and re-establishing the district, describing the lands therein, including the lands specially referred to in the order of the county court quoted above. This statute provides that the district is established as a road improvement district under the general statutes ‘ ‘ with all the powers granted and all the limitations imposed by the terms of said act, except as herein otherwise provided.” Section 3 of the special statute expressly confirms the assessment of benefits theretofore made by the assessors. Section 4 provides how the assessments shall be paid in installments, with interest on the deferred payments. At the extraordinary session of the General Assembly in February, 1920, a special statute was enacted applicable to this district (Act No. 285) expressly declaring that the assessment ,of benefits heretofore made by the board of assessors is equitably distributed in said district, “but inadequate in amount, and that all lands within said district will be benefited by the improvement now under way to the extent of double the amount of the present assessments.” This statute declares that the county clerk of Howard County shall be authorized to double the assessments “now standing against said lands”, and that the assessments thus doubled shall “be made and authorized according to the provisions of” the general statutes of the State. The assessments thus doubled by the special statute referred to were, on a hearing by the county court, disapproved, and no appeal was taken from that order. Notwithstanding this order of the county court, the clerk extended the taxes on the books, pursuant to act No. 285, but the collection was restrained by a decree of the chancery court rendered in a suit instituted for that purpose by owners of property attacking the validity of the assessments. There was no appeal from that decree, and thereafter the commissioners ordered a new assessment, which was duly made by the board of assessors and reported to the county court. This is the assessment against which the protests of appellants were filed in the county court when the assessments came up for that court’s approval or disapproval. The board of assessors adopted what is known as the zone system by dividing the district into zones according to the distance of the lands from the road to be constructed and levying the assessments proportionately according to zones. All of the lands of appellants are in the fourth zone, and the assessors appraised the benefits at ten per centum of the assessed value of the lands. There were protests made by the owners of property in other zones, but there has been no appeal prosecuted from the order with respect to those lands. On the hearing of the cases in the circuit court, that court decided that the lands excluded from the assessments by the original order of the county conrt creating the district can not be assessed now for the reason that the order of the connty conrt was conclusive, and that the Legislature could not thereafter authorize the taxation of those lands for the construction of the improvement. The court made a finding that the lands of appellants situated in the fourth zone “should be assessed five per cent, of their assessed value, instead of ten per cent, as fixed by the assessors,” and that “the assess- ' ment of benefits against the other lands mentioned in the complaint should not be disturbed because the district has already incurred large liabilities, and for this reason alone.” There is no appeal by the parties interested in the last finding, and so we have no concern with that. This is the substance of the judgment as recited by the court in the corrected entry made on May 17, 1921. The judgment as originally entered contained a general finding by the court that there were no benefits to the lands in the fourth zone, but the judgment entry subsequently entered corrected the judgment so as to strike out the recital of such finding. Appellants complain of that part of the judgment which appraises the benefits at five per cent, of the assessed value of their lands; and, on the other hand, the commissioners appeal from that part of the judgment which exempts from taxation the lands referred to in the original order of the county court, and from that part of the judgment which reduces the assessment on appellants’ lands from ten per cent, of the assessed valuation to five per cent, of the assessed valuation. The court heard the issues, as before stated, on oral testimony, and there was a conflict in the .testimony. Each of the appellants testified concerning his own tract of land in the fourth zone, and the testimony tended to show that there was no benefit to be derived from the road, or a smaller amount of benefits than those assessed by the board. The assessors and commissioners were introduced as witnesses, and their testimony tended to show that the adoption of the zone system was, nnder the circumstances, a fair and proportionate assessment of benefits. There was, in other words,- a conflict in the testimony, and there was sufficient testimony to justify the finding of the court that the lands of appellants were benefited to the extent of the amount found by the board of assessors. We have adopted and adhere to the rule in proceedings of this character that the findings of a trial court on conflicting testimony will not be disturbed. St. Louis & S. F. Ry. Co. v. Fort Smith & Van Buren Bridge Dist., 113 Ark. 493. There was certainly enough testimony to warrant the finding of which the appellants complain, and under the settled practice in this court the finding -will not be disturbed. It follows that the judgment on the appeal of the appellants will be affirmed. The trial court apparently made no' finding as to the benefits to the lands originally excluded by the order of the county court and held that under that order there was no power under legislative authority to assess them. In this the court erred, for, notwithstanding the original exemption of the lands from the district, it was within the power of the Legislature to include them in the district as re-established and authorize die assessment of benefits. The Legislature in the special statute did not undertake to determine the benefits, but left that to the findings of the board of assessors, subject to the approval or disapproval of the county court and the right to appeal as fixed by the general statutes, with reference to road districts. The fact that the county court upon the facts presented to it at that time found that the lands would not be benefited did not deprive the Legislature of the power to subsequently reach a different conclusion upon the facts presented to it in re-establishing the district. The power of the Legislature over this subject is, as we have often said, supreme, and will not be disturbed by the court except for demonstrable mistakes in such determination. This part of the judgment will, therefore, be reversed for further proceedings in passing upon the protests of the owners of the property against the assessments made by the board of assessors. The commissioners have also appealed from that part of the court’s finding and judgment reducing the assessment on the lands of appellants from ten per cent, to five per cent. This proceeding merely challenges the correctness of individual assessments of the parties who are protesting, and the effect of the court’s ruling is that these particular tracts of lands will not be benefited ten per centum of the assessed valuation as found by the board of assessors, but will only be benefited five per centum of that valuation. The evidence was, as before stated, abundantly sufficient to show that the zone system as adopted by the board of commissioners was fair and just as a proportionate assessment of benefits, but the fact that the court approved the adoption of the zone system by the board of assessors does not deprive it of the power to examine individual assessments to determine whether or not they should be assessed in the same proportion as other lands in the same zone, for it is entirely consistent to say that it is fair-to assess the lands by zones in accordance with the distance from the road, yet under the peculiar circumstances a given tract of land in a zone would not be benefited in the same proportion as other lands in that zone. Notwithstanding the zone system, it is always a question for determination by the court on the hearing of assessments to determine whether or not individual assessments should be absolutely controlled by the zone system. After all it is a question of fact in each case for determination by the court what is the proper proportionate assessment on a given tract of land. We must assume that the court found in this case that these particular tracts owned by appellant would not be benefited to the extent of the percentage adopted by the board of assessors, but would be benefited to the extent of five per centum of the assessed valuation. In other words, we conclude that there was sufficient testimony to warrant the finding of the court, and, there being no inconsistency in the court’s finding, it should not he disturbed. This portion of the judgment on the appeal of the commissioners will therefore he affirmed, hut, as before stated, that part of the judgment which relates to the lands wholly excluded from the assessment will be reversed and the cause remanded for further proceedings not inconsistent with this opinion.