House v. Road Improvement District No. 5

Humphreys, J. Appellant instituted this suit in the chancery court of Conway County against appellees, attacking the validity of Road Improvement District No. 5 of Conway County and the assessments of benefits against appellant’s lands embraced within the district. The district was created, along with other districts in said county, by special act No. 245 of the Legislature of 1919. The first ground upon which the validity of the act itself is assailed is that the notice to the property owners whose lands were included in the district provided for in the act was not sufficient as to time, or upon its face, to apprise property owners of the burdens about to be laid upon their lands, and was a taking of appellant’s property included in the district without due process of law. This identical point was involved and determined adversely to the contention of appellant in her attack upon Road Improvement District No. 2 of Conway County, which is a companion case.to this in many respects. We deem it unnecessary to reiterate what was said in that case bearing upon this point. The second ground of attack upon the validity of the district is that it was arbitrarily created by the Legislature, as evidenced, first, by the alleged exclusion of benefited lands from the district, and second, by the alleged inclusion of appellant’s unbenefited lands in the district. (1) The district, for the greater length thereof, is between seven and nine miles in width. It is about twenty miles in length. Plumerville is situated in the southwestern corner of the district, and, generally speaking, the district lies toward the northeast from Plumerville, and includes the town of Springfield, situated eleven miles northeast of said town. The main road of the district runs due north from Plumerville for a distance of three miles, where it turns toward the northeast, running through Springfield and to the eastern boundary line of said district. A prong of the road also runs due north out of Springfield to the northern boundary line thereof. About three miles north of Plumerville a lateral runs in an easterly direction to the east boundary line of the district. From this description it will be readily seen that the boundary lines of the district immediately south and west of Plumerville are much nearer the main improved road than the east bound- ■ ary line. It necessarily follows that the lands adjoining the district south and west of Plumerville are nearer to the main improved road than some of the lands east and southeast of Plumerville which were included in the district. Appellant makes the argument that, because lands west and south of the district are nearer the main improvement than lands east and southeast thereof, which were included in the district, the district was arbitrarily created, and therefore void. There are several reasons why this is not so. In the first place, section 17 of the act creating the district authorized the county court, upon notice and hearing, to extend the boundaries of the district so as to include any lands benefited by the improvement. The purpose of including a flexible provision of this kind in the act was to preserve its validity in case a demonstrable mistake was made by the Legislature in establishing the boundary lines so as to exclude lands benefited by the improvement. The remedy of the property owners was not to impeach the validity of the district on account of exclusion of benefited lands, but to move the inclusion of them. Again, there is nothing in the act creating the district, or any fact of which the court will take judicial notice, showing a demonstrable mistake or arbitrary action on the part of the Legislature, in excluding lands from the district. The act itself included the other lands excluded from District No. 5, of which complaint is made, in other improvement districts, and from aught that appears, under the general system of improvement, may have equitably apportioned the lands to the particular district in which they would receive local and peculiar benefits on account of trade relationships, markets, etc. And again, this court is firmly committed to the doctrine that improved roads must necessarily have ternúni, and improvement districts boundaries. Hill v. Echols, 140 Ark. 479; Tatum v. Wallace, 146 Ark. 289. (2) The south boundary line of said District No. 5 is the south line of sections 19, 20, 21, 22, 23, and 24 in tp. 6 N., range 15 W., in Conway County. A part of appellant’s lands were located in section 21 in said district. Appellant alleged and made proof that, on account of Grap Creek and cypress brakes, the only practical route from said lands in section 21 to the improved roads in said district is to cross the south boundary line thereof and pass over lands not included in the district, and a part of which was nearer the improved road than appellant’s lands. Appellant argues that this situation invalidates the act creating the district under the rule announced in Heinemann v. Sweatt, 130 Ark. 70, and subsequently approved in Milwee v. Tribble, 139 Ark. 574; Johns v. Road Imp. Dist., 142 Ark. 73, and Ruddell v. Rutherford, 145 Ark. 49. The rule announced in those cases is that when it appears, from the face of the act creating an improvement district, or from conditions or situations of which the court will take judicial knowledge, that lands of complaining owners are entirely separated from the roads to be improved by intervening lands excluded from the district, or by impassable obstructions or barriers, the inclusion of the lands thus separated renders the act void because arbitrary and discriminatory. In the instant case neither the act itself, nor any impasse of .which this court will take judicial notice, separates appellant’s lands in section 21 from the improved roads in the district. On the contrary, none of the lands embraced in the district, according to the face of the act and such facts, as this court judicially knows, are separated from the improved .roads by an impassé or intervening excluded lands. The Ruddell case, supra, which, learned counsel so earnestly .insist, controls the case at bar, is not applicable because the impassé in that case was an island and navigable stream, of which this court took judicial notice. The only obstructions between appellant’s lands in section 21 and the improved roads in said district are a small creek and cypress brakes, of which this court takes no judicial notice. The statute itself does not impose any burden on the lands included, but merely creates the district and fixes, the boundaries. Adequate methods are provided for the ascertainment of actual benefits and burden of assessments, and the owners of.property are given an opportunity to be heard, which constitutes due process of law. The mere creation by the statute of the district as a public'agency for the construction of a proposed improvement is a legislative, not a judicial, proceeding and does not present a judicial question, further than the determination whether the statute is a valid enactment, and this must be determined from the face of the statute and matters of which the court may take notice. Greene County v. Clay County, 135 Ark. 301. Hence the facts upon which the Legislature is presumed to have based its determination as to the wisdom and propriety of the enactment cannot be reviewed by the courts. The federal cases, on which learned counsel for appellant rely, recognize this distinction. Houck v. Little River Drainage Dist., 239 U. S. 254; Myles Salt Co. v. Iberia Dist., 239 U. S. 478. In the Houck case the court said: “Whether the expense of ascertaining the best method of reclamation should subsequently be reimbursed when final assessments Avere laid according to benefits ascertained to re•sult from the execution of the final plan presents a question of policy, and not of power. These outlays for organization and preliminary surveys could as well be considered specially to concern the district, as constituted, as highways or public buildings' or plans for the same (whether consummated, or abandoned) could be said to concern counties or towns. Further, it would seem to be clear that the State could appropriately provide for meeting the preliminary expense when it was incurred and could determine the manner of apportionment according to the interests deemed to be affected as they existed at the time. And in this view it is not material to ■consider whether the area of the district might subsequently be extended, or what particular lands within it would be appropriated for ditches, reservoirs, etc., if a plan of drainage were adopted and carried out. To say that the tax could not be laid except as a result of such an inquiry would be to assert in effect that as a preliminary tax it could not be laid at all. We know of no such limitation upon the State power.” The validity of the assessment of benefits against appellant’s lands embraced within the district and the right to collect same are assailed upon a number of grounds, all of which, except one, were decided adversely to appellant’s contentions in her attack upon the validity of the assessments and the right to collect same, in the case of House v. Road Imp. Dist. No. 2 of Conway County, ante, p. 330, submitted as a companion case with the case at bar. In order to avoid repetition, w.e refrain from discussing these points again. One ground of attack is made upon the validity of the assessments of benefits and the right to collect same against the lands in the instant case which was not made in the case referred to. It is alleged that the commissioners abandoned the construction of a lateral beginning about two' miles north of Plumerville and running east to the eastern boundary line of the district and known’ as Shaw’s Bridge lateral, or Caney Valley lateral. It is contended that the elimination of that lateral was a substantial departure from the improvement designated by the Legislature. The lateral in question was about eight miles long, and, under numerous decisions of this court, .was an essential part of the improvement contemplated by the Legislature, and the elimination thereof would be a material change in the plans, having the effect of avoiding the assessment against the lands in the district for its construction. Phillips v. Tyronza & St. Francis Road Imp. Dist., 105 Ark. 487. The trial court found that the lateral in question had not been abandoned by the commissioners. The record reveals that from thirty-five to forty per cent, of the work on this lateral has been done, and that the commissioners intend to complete it along with the other portions of the road when the finances of the district will justify them in doing so. Each commissioner gave testimony to that effect. The only testimony appearing in the record tending to show an abandonment of the lateral is unauthorized letters written by two of the commissioners to the State Highway Department in an effort to procure State and Federal aid. The letters indicated a purpose on the part of the commissioners to abandon the lateral, but we do not regard them as conclusive upon the point. The commissioners who signed the letters testified they did so without any authority from the board, and that they were entirely unofficial. The finding of the chancellor to the effect that the commissioners had not abandoned the construction of the lateral is in accordance with the weight of the testimony. No error appearing, the decree is affirmed.