Road Improvement Districts 1, 2 & 3 v. Crary

McCulloch, C. J. The General Assembly of 1919 enacted a statute (Boad Acts, 1919, vol. 1, p. 65) creating three road districts in Dallas County, designated as Nos. 1, 2 and 3, the territory of the three districts in the aggregate covering the whole of the county. The statute prescribes the boundary of each district and designates the particular road or group of connecting roads in each district to be improved. The commissioners of each district are designated, and, according to the terms of the statute, they are to proceed with the improvement of the designated roads in each of the respective districts. The statute is in the customary form now in vogue in recent legislation in this State, and authorizes the appraisement and taxation of benefits to the lands in the districts for the purpose of constructing the improvement, and authorizes the borrowing of money and the issuance of 'bonds. Each of the districts proceeded with the work authorized by the statute. The benefits were appraised in accordance with the provisions of the statute, and contracts were let, money borrowed, bonds issued and sold. A considerable portion of the work of improveing the designated roads in each district was done prior to the commencement of this suit, the proportionate extent of the work being in dispute. Appellees are citizens and taxpayers of those districts, and instituted this action in the chancery court of Dallas County, attacking the validity of the statute creating the districts, and all the proceedings thereunder. There is an attack made on the correctness and validity of the assessment of benefits. The case was tried upon the pleadings and proof, and the chancellor sustained the attack upon.the validity of the assessments and rendered a decree setting them aside and restraining the collection of taxes. The court also found that the commissioners had been improvident in the method of constructing the improvements and restrained them from “exercising any further control or management of the said district,” and appointed a receiver with instructions to “take charge of and collect all funds and property belonging to each of the defendant districts, and receive and receipt for all such funds and property and hold them safely in his hands until the further orders of this court.” The court decided against appellees in their several attacks upon the validity of the statute, and entered a decree dismissing the complaint with respect to those features of the case. The road districts have appealed to this court, and appellees have cross-appealed, bringing up for review that part of the, decree which was adverse to their contention. The first questions to be disposed of are those arising on the direct appeal. The statute provides, in substance, that the county court shall appoint three assessors to act-for each of the districts and appraise the benefits; that the assessors, after taking the oath of office, shall proceed to assess the benefits to the lands in each of the districts and inscribe the assessments in a book, and, after completing the same, file the assessment lists jwith the county clerk. The statute then provides that notice of the filing of the assessments and the date of hearing protests in the county court shall be given by publication. It provides that on the day named in the notice the county court shall meet and hear all complaints, “to equalize and adjust the same, and its determination shall be final, unless an appeal is taken and perfected-within thirty days thereafter to set aside its findings.” The statute further provides that the county court shall enter an order levying the assessments on real property in the district, “which shall have the force and effect of a judgment,” and that the remedy against such levy of taxes “shall be by appeal, and such appeal must be taken within twenty days from the time that such levy has been made, and on such appeal the presumption shall be in favor of the legality of the tax.” Secs. 8, 9, 11. The statute was complied with in the appointment of assessors, the filing of the assessment lists, the publication of notice, and the order of the county court levying the assessments. No appeal was prosecuted from the order of the county court in regard to individual assessments or in regard to the levying of the taxes on the benefits. This action in the chancery court attacking* the validity of the assessment was filed long after the expiration of the time for appeal. The assessors adopted the plan for assessing benefits according to zones, classifying the lands according to distance from the roads to be improved. It is charged in the complaint that this adoption of the zcne system was arbitrary and unreasonable; that the assessors failed and refused to consider actual benefits to accrue from the roads; that each of the assessors was not present at all times when the assessments were made, and that they did not visit and inspect the lands in the districts. 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 proceedings. Reitzammer v. Desha Road Imp. District, 139 Ark. 168; Summers v. Conway & Damascus Road Imp. District, 139 Ark. 277; Nettles v. Hazelwood Road Imp. District, 144 Ark. 632; Sikes v. Douglas, 147 Ark. 469. If it be true, as charged, that the assessments were made on the wrong basis, and that the assessors failed to consider actual amount of benefits to accrue to each tract of land, or failed to inspect the lands, or if one of the assessors failed to attend all the time that the assessments were being made, these were irregularities which could only be corrected in the manner and within the time specified in the statute. These facts cannot be shown in a collateral attack on the assessment where the assessment i's regular on its face, as in this case. The assessment list shows on its face that it is according to the zone system, but we have decided that that method of assessing benefits is not invalid, even in a direct proceeding to test its correctness, when it is shown that the plan was not adopted abitrarily in disregard of the actual benefits to accrue. Missouri Pacific R. Co. v. Conway County Bridge District, 134 Ark. 292; Rogers v. Highway Imp. District, 139 Ark. 322; Hines v. Road Imp. District. 145 Ark. 382; Board of Improvement v. S. W. Gas & Elec. Co., 121 Ark. 105. The chancery court therefore erred in deciding that the assessments were invalid, and in restraining the en-. forcement of same. The court also erred in restraining the board of commissioners from exercising further control over the affairs of the district and in appointing a receiver to take charge of the affairs of the districts and collect the funds and property. Paving District No. 5 v. Fernandez, 142 Ark. 21; Martin v. Hargrove, 149 Ark. 383. The court could restrain the commissioners from committing waste or from other misconduct in excess of power, but it could not appoint a receiver to take charge of the affairs of the district without statutory power conferred for the purpose of winding up the district. The first attack on the validity of the statute is on the ground that the constitutional jurisdiction of the county court is invaded by creating a district covering the whole of the county. There is only one statute, but it creates three separate districts. Cumnock v. Alexander, 139 Ark. 153; Hamby v. Pittman, 139 Ark. 341. This does not constitute an invasion of the jurisdiction of the county court, even though the whole of the county was embraced. Bennett v. Johnson, 130 Ark. 507; Johns v. Road Imp. Districts of Bradley County, 142 Ark. 73; Van Hook v. Wallace, 143 Ark. 203. There is nothing to be added to the discussion set forth in the opinions in the cases just cited. The whole of a county, or any part thereof, can be embraced in an improvement district for the purpose of constructing a single improvement, (Bennett v. Johnson, supra), but separate and distinct improvements cannot be grouped together so as to tax the lands affected by one improvement for the purpose of paying the cost of another improvement. Swepston v. Avery, 118 Ark. 294. It is, however, insisted by learned counsel for cross-appellants that this case is distinguishable from former decisions of this court, particularly the case of Van Hook v. Wallace, supra, on the ground that some of the roads to be improved run through two of the districts, and, in fact, constitute a single improvement. It appears to be true that some of the roads being improved run from one district into another, but this fact does not distinguish the case from our former decisions, so far as it relates to an invasion of the jurisdiction of the county court. If certain roads running through all three of the districts constitute single improvements, as contended by counsel, this raises the question whether the Legislature ought to have separated them into separate improvements, but it does not affect the question of the jurisdiction of the county court in authorizing the improvement to be made, through the agency of improvement districts, rather than by general taxation under orders of the county court. Conceding that the particular roads mentioned might have been the subject of a single improvement, the enactment of the statute constitutes a legislative determination that the group of roads in each district constitute a single improvement, and we must respect the determination unless it is obviously and demonstrably erroneous. See cases cited, supra. The other attacks on the constitutionality of the statute on the ground that it, in effect, authorizes the issuance by a county of interest-bearing evidence of indebtedness; that it violates the Constitution with respect to uniformity in taxation by authorizing assessments on real property and not on. personal property, and that it violates the Constitution in that it authorizes the taxation of homesteads, have all been decided against this contention by repeated decisions of this court, and these questions have become so firmly settled that further discussion is unnecessary. The decree is therefore affirmed on the cross-appeal, but on the direct appeal of appellant the decree is-reversed and the cause is remanded, with directions to dismiss the complaint for want-of equity.