ARK.] SWAN V.' OZARK ROAD. EiP.'D .18T. 987 , SWAN V. OZARK ROAD IMPROVEMENT IiISTRICT: • • . . Opinion delivered 'November 30;1926. • " HIGHWAYS—Is g -• „ UANCH OF BONDS BY IMPROVEMENT DISTiiIciThe Harrelson Act (Spec. SeSs. 1923, .No: 5): prohibiting _road provement districts whiCh had not let any contract, actually done construction work, or issued, sold . or delivered bonds, from making . improvements without the consent of a majority of. landowners; does not prohibit bornmissioneis of such a diSirict "froni • issuing .additional bonds to . complete an improvement'where the district had previously, to passage of the act asSessed be t ' terments and issued bonds; the assessments having been .made on the assumption that this contemplated improvement would be completed.,, HI GH WAYS— . ISSU . ANCE OF BONDS.—Issuance of -bonds for improve- ment of roads, though requiring an . incre . a:se inAhe PerCe , nt'age of betterments to be paid each year,- would not 'be 'enjoined as being confiscatory;. since the protesting landOwilers_. hnd 'permitted . _ tlie.. assessments to be made : without protest, . • Appeal-fi . Om Poinselt 'Chancery C . Outt ; J.M. Chaneellor; fffirmed. • • • •:' ‘• Engene • Sloan and J. G. 'W a, qcoiii, for appellant:.•'' T. Caenter and Chas.. .1 j . Frid#:,§On; fOr 'apPellee. J.' The Ozark Trail ROad Iniprovenfent Distriet • of Poinsett County was organized by spethat' act No. 277, of the . Gene . tal Assembly' of '1919... 'Road A.cts, p. 1130. Additional , laterals were 'provided for and certain sections Of the Original act were amended by ,act No. 249 of the unpublished acts of the special se'ssion of• the year 1920. AdditiOnal territory, as welt as' additional laterals. were taken in and other 'changes were made W7
988 , SWAN V. OZARK ROAD IMP. DIST. [169 act No, 475 of the 1921 session of the General Assembly, which provided for a new and general reassessment of all benefits of land and real property within the entire district. , Special Acts 1921, p. 1000. • • • The principal road' of the district was a concrete highway from Marked Tree to' the Crittenden Connty • line; hut the plans of the district called for . the construe-tion of several laterals. Bonds were issued in a sum exceeding seven hundred thousand dollars, and this money was expended in the construction of the concrete part of the road and in draining and grading the lateral roads which had no hard surface of any kind: At the 1925 : session of the General Assembly_ act No.: 106 was passed, which amended ,in seyeral particulars the prior:acts relating.to . this improvement district. Acts' 1925, page 315: 'Section 1 of this amendatory act re- . moved the old' coramiSsioners and appOinted new ones. The commissioners, after qualifying in the manner required by the act of 1925, caused plans to be prepared for hard surfacing the laterals, and advertised an offering of additional bonds of the district for sale in the sum of $125,000. , Certain landowners in . the 'district ; brought this suit to enjoin the issuance arid, sale of these additional bonds, alleging that. the district was goyerned by the provisions of § 25 of act Nro. 5; Acts 'Special Sessiori 1923, page 11, commonly , known as , the Harrelson : law. By this section it is provided that any road improvement district which had not, at the time of the passage of that act, let any. construction contract, or had actually done construction work, or had issued, sold or delivered the bonds of the district, should not proceed with the construction of the improvement, unless a majority in number and in value of the landowners in the district should vote that the commissioners proceed . ,with the construction of the improvement. ,The protesting landowners in the instant case alleged that, prior to the passage of the Harrelson act,
ARK.] SWAN V, OZARK ROAD, IMP. DIST: -989 the improvement district in which . their lands were . .:situ-ated- had completed the ,entire -improv,effient; ;.in so far, the improvement was covered by ; .any plans which had,, ever been prepared and. approyed,. , and . that , because of the provisions ,Qf the,garrelson tact ; there was,.no, authority in law for the cominissioners , to hard surface, any-, of the laterals not covered by plans, calling fOr this jm-proVement, inasniuch as no eleotion: of the' tandOwners hadi«een'.`held . .' ' '" r;1, - testimony , shoWs,,ratber clearly, : we, tbiiik,, that, it ;was always the intention of ther comi*sionbrs of ,the,.. district; to put, gravel ; on the laterals, and that the bet-terments were assessed on fhe assiimption , that this.t would be done ; but the testimony also establishes the facts that no Plans ca1lirig for ; this' . SUrfabing and p ' rovid-ing' sPecifioatiOns therefor Werbl . eVer addlited; 'Or' Were: in existence at' the iiMe 'Of thb first bond `S'ale.' • The 'C"Art below therefOre" foundand there', Were no ptanS , fdr: hard sUrfaCini the' lateral' rdads'Prio'r. te the . PaSsd.ge of the" abt' 'Of '1925. ; ` The' COMMi'ssiOrierS'." appointed by- this act caused .plaris to , be prepared 4fia filed:for graVeling the' lateral 'roads. • , . The landowners ivho Seek , to ,enjoiri,the improvement of these laterals say this work is, in effect, a new, improve-, ment, and that the commissioners , are without power to construet it beCaUSe this linaovenienf the: Original 'planS; and, had been COMpleted When'the'llai l ielSOn; c't Was PasS'ed,.'i thb bOmmiSsiorierS annot 1 ork not proyiadd' f6r the original plaiiS:WithOUt fird . Seentifig the conSent of; the landownerS 'as pfovided by th'e' Hai 1 rMson act" After hearing the ;testimony in . the ;case, the f : court. made the following findings of fact., , First: The ,court, finds that; the plans , of,the :-district as, filed did notembrace , grayeling the, laterals4in-,: til amended ;recently, tand, that, such amendment ,is the; basis for the additional bond issue now. assailed,.
990 SWAN v. OZARK ROAD IMP. DIST. [169 • Second. ' The court ' finds that the plans of the dis- • trict as actually filed, and not including the . recent amendMent, have not been fully : eiecuted. • • '• • t • " UpOdthese findings of fact; the , court . dismissed . the . bill to 'enjoin the commissioner's 'aS being WithOut equity, and' thiS aPpeal is from 'that deeree: It is conceded that the $125,000 additional bond issue will not require any increase in the . assessment of benefits, the betterments originally assessed being in excess * of the outstanding bonded indebtedness 'and this . additional bond issue, but there will be • required ail increase of about 11 per cent. in the percentage of better! ments to' be paid each year. As WO have said, the, betterments in the entire district were a . ssessed upon the assumption that the laterals, were to be- improved. This assessment was, of course,.• irregular and unauthorized, because ; no plans .providing for this part . of the improvement had . been prepared and adopted and filed as required by law, The failure , to do this ,would.have afforded the landowners adjacent to and benefited by these laterals just cause to protest against their assessments, prOvided they did so within the time and 'Manner limited by the Jaw Under Which the district was 'orkanized. . The Controlling question on the presed a!iiiieal is whether : the power of the commissioners to improve the laterals had been , , deStroyed by the Provisions of , the Harrelson act. Unless this bas been done,, the special acts relating to thiS district give the commissioners power* to make this improvement, and this is true, notwithstanding the original plans did not call for gravel on the lateralS, this being true because the right to change the plans is expressly conferred. • 'Section 4 of act 277 of the Road Acts of 1919, vol. 1, page 1130, which is the act creating the district, makes it the duty of said commissioners "to Proceedas 'rapidly as possible with the improvement of the roads herein-
-ARK.] SWAN V. OZARK ROAD IMP. DIST. 991 . before described, improving them in such manner as they deem to the best interests of the property owners. * *.” . Section 2 of act 249, approved February 20, , 1920, also Provides that ' the . conimiSsioners shall grade, °drain arid 'contract the laterals authorized : by thi§* sectien" of this Ad in* such manner and of such materials as they shall deem fer the 'best interests Of the property owners Of the district." This expres Authority was carried forWard in the amendatory ael NO. 475 ' Passed ait'the 1921 sessiOn'of the t ( General ASsenibly, ActS 1921, Page 1000, for by ' § '8 "Of this - act it is prOvided that it is hereby made the duty .of . the commiSsioners of the Ozark Trail Road,Improve-( .ment complete'said roads, and to cover so Much,thered -as is advisable with a hard surface.2' -• •• -• ---• We are 'Of the opinion that the prdvisions of the Harrelson act did not apply to this .district. had'actu-i, 'ally issued and delivered Over 'seNieri . hundred 'thonsand .dollars in bonds at . the time 'that act was passed, and it had-not completed all . parts of : the' improvement called fOr by the valid plans of-the distriet. Indeed, the chan-cellor-found that' the original and approved" plans of the district had not been -fully 'completed at -the tirtie of' the hearing from which this Appeal is prosecuted, and the'testimony . stistains that finding -of fact: This being -true; the Harrelson act; • the express proVisionsi-of •§' 25 thereof, 'could not ' and-did not apPly -to this . diStriet, a".nd the•cOmmissioners reinained . vested, notwithstanding the Harrelson- act, with all' the powers conferred by the original act creating' the : 'district • and the subsequent amendatory acts, and, as we have already seen; -these acts gave the commissioners power,-.to place. gravel On ,such of . the laterals as, they saw proper : to .do. This view is reenforced by a consideration of the provisions of act 106 of the Acts. of 1925_ This act . is a -legislative finding of . fact, that r the Harrelson . act . did not apply to this district. But, if it did originally.apply, the act of 1925 must be regarded, as,a . mendat . Ory.thereof,
992 SWAN V. OZARIt ROADIMP. [169 iid 'operating to take thiS district Out of . the provisions of the Harrelson het.' . • This h:cti 106 containS . 'fifteen -seetions, and is , rather 'COMpteUksiye e in itSelf. ' , - 'It elearlY recognied . that' the 'district had . not cOMPleted the iMproVenient 'wh , ich ',it waS organized to .construct. Seetion 7, contains prOViSiOns and limitations under which contracts exceeding fiye , hundred . dollars in cost may , be let, and § 13 contains anthority for the,iSSuance . of. *additional bonds and limitations - as to the pric'efOr, which they „ may be sold. It is insisted •that the decree in the instant *case i8 in conflict; with the' :deCree in' the. 'case of 'Boyd :v•. Ozark • .Road, Improveroent :Vis . frict,:. 168, Ark. 525. • :In . the former case preperty. owners' in, the district,: whose lands were. adjacemt to a. lateral :which :had . only been drained, and . graded,., complained of., their . - :assesments lbecause the lateral had not been• :hard, .surfacedi—tr.,y---• assessments.being based.upon the , theory that this.wOuld beidone: ,:There,;,was,; involved,, / in „that ..case•, no ques--0-q 11 .. of the. pOwer . ofthe; commissioners. : to hard sur--face,the lateral,,. Thesomplaint of the landowners wa.s . that this bad,not:been done. ,. The .same chancellor pre-;sided, in, the.-trial of,lboth cases ;ii . the court .below, and e,think;therejs . no ;inconsistency in•.the decrees .in..the -two; cases, and,certainly . nothing:was -decided •by us in the, former:appeal which 'supports the.contention, of the protesting landowner-i herc that the commissioners, are .!? .without. power to,..do, the:thing which was. there con-:tended had not been done,: that, is, to hard , surface the ,lateral., • ' Relief in the fornier case was denied the protesting landownerS on the theory that the assesSment of benefits froin which they appealed was init a general' assessment, but tTas 'a mere' correCtiOn of dbvions errors, and that 'the 'landoWnerS shotild :have :appealed from the prior general . assesSment, and, as they had' not done so within-the time limited 'for thatImirpose, they' were barred by
ARK.,] . • SWAN V. OZARK ROAD IMP. DIST. 99.3 the limitation on the right of appeal imposed, by the acts under which the assessments had been made. It is finally insisted that the, increase in the per cent, of the betterments which it will be necessary to collect to -improve- the•unsurfaced laterals will make the entire' tax in the district confiscatory. -A 'sufficient answer to-this el:intention is to -say that this change in plans does not _involve 'any .increase in the "assessment Of betterments, and the landowners here protesting permitted their assessments to . become -final by failing to complain against them within theY time allowed them by law for that purpose.- Indeed; the equities of the case appear to .be against the protesting- landowners in the present case. If the relief prayed by them were-granted-, the owners of land adjacent to the Jaterals would be required, under the decree -in Bod v.. Ozark Trail Road Imp: Dist., supritylo pay taxes based upon the assumption that the laterals' would be -improved which, a'Ceord-ing to' the'contentiOn Of' the'protesting landownei g in-the instant case,ishould not -be' done, becauke this part Of the improveinent'wak not covered by the original Plans adopted and approved illy the- distrigt. But, notwithstanding the fact that :these plans did not call him this impfovement, authority to' improve these laterals is found in- the provisions of the act allowing the commissioners to change the plank. There'is no constitutional objectien to this legislation, as the improvements may be constructed within the betterments already assessed. -The decree is correct, and is thereford affirmed. -•
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.