Davis v. Road Improvement District No. 7

McCulloch, C. J. Appellee is a road improvement district, created by special statute enacted at the regular session of the General Assembly in the year 1919 (vol. 1 Road Acts, 1919, p. 1205), and the commissioners of-the district instituted this action in the chancery court of Little River County to enforce payment of delinquent assessments. Appellants, who were owners of lands in the district, appeared and filed an answer, attacking the-validity of the statute creating’ the district as well as the validity of the assessment of benefits. The court sustained a demurrer to some of the paragraphs of the answer, and there was a trial of the issues on other paragraphs, which resulted in a decree in favor of appellee, foreclosing the lien on the lands of appellants for the delinquent assessments. An appeal has been prosecuted in .apt time. The validity of the statute is attacked on the ground that notice of the introduction of the bill was not given as required by the provisions of the Constitution, and also that the enactment was in conflict with the provision of the Constitution that “where a general law can be made applicable, no special law shall be enacted.” Constitution of 1874, art. 5, § 25. These questions have been so often decided by this court against the present contention of appellants that it is unnecessary to discuss them at this time. We must treat the questions as settled that a conclusive presumption will be indulged that notice of the introduction of the bill for the statute was given .and that the legislative finding as to the- propriety and necessity of passing a special law was conclusive. Booe v. Road Improvement District, 141 Ark. 140. The validity of the statute is also assailed on this ground that the description of the road to be improved was too uncertain to afford identification. The description is as follows: “A road beginning on the north side of the railroad, on the western boundary of the county, in section twenty-six (26), township eleven (11) south, range thirty-three (33) west, and running southeasterly and southerly to the south line-of section twelve (12), township twelve (12) south, range thirty-three (33)-west; thence easterly and southerly through said town of Rocky Comfort, or Foreman, on streets to be selected by the commissioners, to a point near the east quarter corner of section twenty-seven (27), township twelve (12) south, range thirty-two (32) west, thence southeasterly and easterly to the boundary of the district on the north line of section six (6), township thirteen (13) south, range twenty-nine (29) west. ’ ’ The contention is that that portion of the description which refers to “a point near the east quarter corner of section twenty-seven” is indefinite, in that there is no point to which it can definitely refer. This is an obvious clerical error, and does not affect the validity of the description. The language in question describes a cem tain public road, and part of it runs through the town of Foreman (or Rocky Comfort, the other name by which the' town is designated), and an error in one of the calls does not lessen the effectiveness of the description as a designation of this road. The statute authorizes the commissioners to adopt the most favorable route through the town, and, even if the description were not otherwise sufficiently definite, the error would be cured by the authority of the commissioners to select a route through the town. This attack on the validity of the statute is therefore unfounded. It is next contended that the statute is void because it fails to prescribe the standard to be adopted by the assessors in appraising benefits. It is true that the statute does not provide a specific basis for determining benefits, but § 5 merely provides that the commissioners “shall appoint three assessors, who shall proceed to assess the lands within the district, and shall inscribe in a book each tract of land, and shall assess the value of the benefits to accrue to such tract by reason of such improvement.” The clear meaning of this provision is to require the ascertainment of actual benefits to accrue from the improvement, and it is left to the assessors to consider all elements which enter into the question of benefits and to assess according- to actual benefits: It is not essential to a law authorizing- an assessment that there shall be a special direction as to the basis to be adopted. The lawmakers may specify such basis as a legislative determination that actual benefits will accrue in accordance therewith, but it is not essential that the basis of valuation be specified in the law. It is sufficient merely to provide for an assessment according to actual benefits. Learned counsel for appellants seem to think that the effect of the decision of the Supreme Court of the United States in Kansas City Southern Ry. Co. v. Road District, 256 U. S. 658, is to hold that the Legislature must specify the basis of the assessment of benefits, but we do not think that the decision in question is an authority to that effect. The atttack on the validity of the assessments begins with the contention that the list of the assessments sued on was not the basis of the order of the county court levying the taxes, and that no notice was given of the filing of the assessments in accordance with the statute so as to afford the landowners an opportunity to be heard. The facts of the case, as disclosed by the record', are against this contention of appellants. The assessors adopted what is termed the zone system of assessments, and filed the list of assessments, as provided by th$ statute, with the county clerk on July 18, 1919, and the order of the county court levying the taxes was entered on September 26, 1919, based on the list of assessments filed by the board of commissioners. It .appears from the evidence in the case that, before the taxes were actually extended on the taxbooks, it was discovered that there were clerical errors in placing some of the tracts in the wrong zone, and this was corrected, in the extension of the taxes, so as to place them in the zone to which they belonged and to extend the taxes in accordance with the-benefits assessed on lands in those zones. Under the direction of the commissioners, an employee made a copy of the assessment list with the proper corrections thereon as to the zones, and this copy was certified by the commissioners and-left with the clerk to be used in the extension of the taxes. The proof shows that the original assessment was the basis of the county court’s order in levying the taxes. The validity of the assessments was not affected by the obvious errors, in some instances, of putting certain tracts in the wrong zone, for the assessment itself showed that land a certain distance from the road was to be placed in a certain zone, and this made any error in placing land in the wrong zone an obvious one. In other words, the assessment shows on its face that the benefits on all lands were assessed in accordance with the location in zones, therefore the location of the land determined the amount of appraised benefits. It is also contended that the order of the court levying the tax on assessments was void because the levy was for an amount in excess of the actual cost of the improvement. Section 8 of the statute provides that the remedy against the levy made by the county court must, be by appeal, and we have held that the remedy by appeal is exclusive, unless the assessment is void on its face. Pierce v. Drainage District No. 17, 155 Ark. 89. It does not appear that the installments of taxes levied by the county court were in excess of the benefits, therefore the order is not void on its face, and the remedy for the correction of errors by appeal is exclusive. Again, it is contended that the assessment of benefits was void for the reason that there was not a separate assessment for the lateral roads authorized under the statute to be constructed. The statute does provide for the assessment of benefits and taxation thereon for the construction of laterals, but it does not appear that the lands contiguous to the laterals were not separately assessed under the zone system for that purpose. It is true that the lands were all embraced in a single assessment list, but it does not follow, from this mode of assessment, that the funds arising from the taxes could not be separated so as to be devoted to the identical purposes for which they were to be collected under the statute. This same question was raised in the recent case of Davis v. Cook, 159 Ark. 84, involving the affairs of the same district, and it was decided that the assessments of the laterals were, in effect, separately made. We think that it is the same in the present case. The present proceeding is not one in wdiich the action of the commissioners in the expenditure of funds arises, and there is no attempt to show here that the commissioners have abused their powers in using funds taxed for one part of the improvement to pay for another portion of the improvement. Of course, there is a remedy for any abuse of power, but those questions are not presented here now. The validity of the assessment is also attacked on the ground that it was improper for the assessors to adopt the zone system; that the assessments were arbitrarily made, without regard to value or condition of the particular tracts of land; that the assessments were confiscatory; and that there was discrimination in omitting from the assessment lists real property owned by certain churches in the district. The answer to all of these contentions is that the statute provides a direct method of attacking the assessments within a limited time, and, unless the assessment list is void on its face, the statutory method for testing the validity is exclusive. Many recent decisions of this court are decisive of the question. Road Imp. Districts v. Crary, 151 Ark. 484; Pierce v. Drainage District No. 17, 155 Ark. 89; House v. Road Improvement District, 158 Ark. 330. We have decided that the adoption of the zone system is not, on its face, an erroneous basis for assessing benefits. Of course, on a direct attack upon this method of assessment, a landowner has the right to show that the adoption of the system does not .afford a proper method of establishing a uniform assessment, but the attack oil this ground must be a direct one, and not collateral, as in the present case. There is nothing on the face of the assessments, in the present case, to show that they are .arbitrary or unjust or that all the elements entering into the question of benefits were not considered in adopting this method of assessing. This disposes of all of the alleged grounds of attack on the validity of the statute and of the assessments of benefits, and, as we have concluded that all of the attacks are unfounded, it follows that the decree must be affirmed, and it is so ordered. Wood and Habt, JJ., dissent.