1198 GREEN V. WILLIAMS. [169 UTREEN V. NV ILLIAms. Opihibn delivered December 14, 1925. 1. HIGHWAYS—VALIDITY OF ACT AUTHORIZING DISTRICT TO COMPLETE IMPROVEMENT.—Acts 1925, No. 99, authorizing the Osceola and Little River Improvement District No. 1, .previously organized under the Alexander Road Law, to make additional assessments and to issue additional bonds to complete the improvement, held valid, the provisions thereof constituting a complete and workable law with all the necessary machinery for the assessment of benefits, the issuing of negotiable bonds, and the levying of taxes on the benefits assessed. 2. PLEADING—ADMISSION BY DEMURRER.—A demurrer. admits to be true all facts well pleaded. 3. HIGHWAYS—LIMIT OF ASSESSMENT.—Acts 1925, No. 99, authorizing additional assessments for completion of a road improvement held to remove the 30 per cent, limit provided by the Alex-ander Road Law, under which the Osceola & Little River Improve-'ment District No. 1 was organized. 4. HIGHWAYS—MODE OF ATTACK ON ASSESSMENT OF•BENEFITS.— Where no facts were alleged, in a com'plaint attacking the assessment of benefits under Acts 1925, No. 99, showing that the asses§ment was void on its face, plaintiffs could not attack the assessment on other grounds, except in the manner prescribed by sections 3 and 5. ,Appeal from Mississippi Chancery Court, Osceola District; J. M.Futrell, Chancellor ; affirmed. G. B. Segraves, for appellant. , .
ARK.] GREEN V. WILLIAMS. 1199 J. T. Coston, for appellee. WOOD, J. This action was instituted by Ben Green, D. F. Taylor and S. L. Gladish against J. L. Williams, A. S. Rogers, H. P. Dunavant, A. G. Brickey, W. T. Ramsey and 'Clinton Fraser. It was alleged in tbe corn-plaint that the Osceola & Little River Road Improvement District No. 1, hereafter called district No. 1, was organized under the Alexander road law in the year 1918 ; that J. L. Williams, A. S. Rogers and H. P. Dunavant are the commissioners of the district and A. G. Brickey, W. T. Ramsey and Clinton Fraser are the assessors ; that the district is six miles wide and extends from the east to the *est Side Of Mississippi County; that, while litigation was pending over the creation of the district, the owners of real 'property west of Little River organiZed-an improvement• district under tbe Alexander road law covering all the area west of Little River that was embraced in district No. 1. The district thus organized embracing the territory west of the river included all the roads ii the territory embraced in district No. 1 west of the river. No roads west of Little River were improved by district No. 1. District No. 1, however, built a bridge over Little River which, to some extent, benefited the lands west of Little River, and a small assessment of ben efits was placed upon suid lands west of the river by dis2' trict No. 1. District No. 1 isaied bonds of the par value of $278,000 which was approximately 30 per cent. of the • assessed value of the real property within said district,' and thereafter no additional bonds could be issued without additional legislation ; that $278,000 Was exhatisted in the 'building of the bridge across Little River, and in grading the principal highway and some of the laterals east of' Little River•within district No. 1, leaving no funds 'With which to surface the roads ; that because of the peculiar condition of the soil of the roadS in district No. 1, the money already expended was a useless waste unless the roads are Surfaced; that on the 21st of Feb-ruary, 1925, the General Assembly pasSed act No. 99, which was a special act, authorizing road district No. 1
1200 GREEN V. WILLIAMS. [169 to 'make additional assessment of benefits and to 'issue additional bonds to improve, the highways . within said district east of- Little River ; that,.at about..the lime of the approval of act No. 99, the special Supreme Court held that amendment . No..1,2 to the Constitution was duly and legally adopted; that •n' the 27th of March, 1925, the Gelieral Assembly passed act,No. 215, a.general act, which was also designed and intended to .give relief to , road improvement districts of the character ,of district No. 1 , that had exhausted their funds and, only partially completed the :work of such districts ; that district No. 1, assuming that . act No. 99 was unconstitutional . and void, proceeded, under . . act No. 215 of the Acts of 19'25, after the 'State Highway Engineer, had filed his , certifi-cate- as provided in § 2 of that . act,. stating that. district No.•1 of Mississippi County, could not receive the.maxi-, Muni of federal aid without the:benefit of the act ; that:a majority of the property owners within district No. 1. as a whole, and also • a majority , of . the property owners east of Little River, filed a petition. provided for by both the .gener , al and local laws of . the Acts of 1925, praying that an additional assessment of henafits be made; and that additional (bonds the issued tomak6 the impro , vement ; that, after the district No. 1 had commenced proceedings, under this general law to make additional assessment of benefits,. and issue additional bonds. to surface the roads, the Supreme Court held that amendment No. 12 was not properly submitted to the people for ratification, and , thus special act No. 99 was put in force ; that the procedure , provided for .in the local statute is substantially the same as that provided in the , general statute, except that the local statute provided that the roads west of Little River were not to he improved, and the lands west of Little River were not to be assessed for the additional improvement contemplated in the surfacing of the roads east of Little River ; that the commissioners of district No. 1 formulated plans for the improvement of- the roads east of Little River, but none west of Little River within district No. 1; that an_assessment of benefits had be-en
ARK. _1 GREEN v. WILLIAMS. 1201 levied upon the lands.east of Little River for the purpose of 'paying for this improvement ; that the assessment of the lands west of Little River was merely copied or repeated by* the assessors in making the assessment under the new law, whereas" the assessment of benefits made by theni under the new law on lands east of ,Little River is about three times the original assessment of :benefits ; that this, resulted in placing all the burden of, the additional work,of surfacing the roads east of the river on the lands within improvement District No. 1 east of such river ;. that district No. 1 . contains about 60,000 acres of land,. 48,000 adres east of Little River and 12,000 acres. west of the river ; that notice was given of a hearing on ,the assessment . of benefits before the board of assessors, to be held September 5, 1925, and all persons 'within the district were giyen an opportunity to be heard; that the commissioners of district No. 1 had contracted for the sale of, bonds for the purpose of raising funds to cOmOete the work of surfacing the roads east , of Little Riyer unless restrained, would isrsue these bonds, and,thus*plaCe. a cloud, upon the title of owners of real property . in the district for levies on assessment of 'benefits to pay -the bonds. •,‘ The plaintiffs, Gladish and Taylor, alleged that they were the owners of 500 acres of land within district' No. 1 east of Little River upon which, a heavy assessment of benefits had been levied for the completion of 'Said additional work, and that the plaintiff; Green, was the owner of 160 acres of landin district No. 1 west'of ,Little . River. They alleged that special .act No. 99 of the:Acts' of 1925 is unconstitutional, and that the acts of the .Commissioners and assessors thereunder:in an effort tO.' :con, fine the Assessment of benefits and improvement of the roads to the lands within district Nd. 1 lying east of Little River were null and void. They prayed that the assessment of benefits be annulled, and that the conimissioners be enjoined from issuing and delivering bonds and making the imprevement conteMplated.
1202 GREtN v. WILLIAl gs. [169 The.above are the facts 'as set forth in the complaint: The defendants filed a demurrer, alleging that the complaint 'did not state facts sufficient to constitute a cause of aetion. The trial court sustained the demurrer.. The plaintiffs stood on their'complaint; and the court entered a" deetee dismissing the same for want of equity; from:which iS: this appeal. 1. The trial court found, as set forth in the decree, that "the assessthent on lands -west of Little River does ndt increase or lower the assessment of benefits on the land of . any proPerty owner, and it is . not therefore in reality a new assessment, but a reaffirmance of the original assessment, which necessarily follows' because the asseSsment of land west . of Little River remains the .same and unchanged by the so-called new assessment: "r ' Act No , : 9 • 9 • -Of the aets of 1925, p. 29'7, is an aet en: titled "An adt to authOrize'Osceola & Little RiVer Road,' ImProVeMent District No. 1 of Mississipid COuntY, Ark:•' ansas,' toi Make additional assesSMents and issue addi-tiOtial ; bandS to 'cOmPlete the imprOyement of the publie rOads' M Said' district aiid fOr Other PurpoSeS:" Section 1 Of theabt authOrizes diStrict No. 1 to make additional assessments of benefits for the purpose of completing' the' work Of !iniproi Ting any and all: Of the public road's' east of Little . River according to plans previously approVed by the county' court,' and any amendments or alterations' Which the cOminissioners might thereafter make. There is•also. a legislative finding and declaration in the first sebtion that the lands west of Little River Will' not be benefited by the work contemplated, and that they . Shall not be assessed for the additional improvement: Then provision-is made for a' petition by a majority of the propertpowners in acres, number or value, within the distriet east of Little RiVer for the issuance Of additional bonds. - Provisien is also made for the notice to•be given of the , hearing of such petition by the board of commissionerS,, , and-for protest against such petition by any property owner who may desire to be heard and for at-
0 ARK.] GREEN v. WILLIAMS. 1203 tacking the finding of,the commissioners by any dissatisfied property owner by a. bill in the chancery court. It is provided that the provisions requiring, the petition :of a majority in acres, number or . . value, .of the Property shall not apply to the semi-anntal reassessment of benefits, nor to any alteration in the plans : or assessments after the bonds are issued for the purpose of . addirig lat-eraFroads to the plans. „, Section 2 of the act validateS the Plans 'and assessment of benefits already made 'and adopted, brit provides that they may be 'altered or abandoned;in whole or in .part by the board preparihg plans, filing-same with 'the chairman of the board of comMissioners, together With a corresponding alteratidn •or 'Modification:of the , a,*is-rnent of benefits on the real property 'affected therehY as the assessers inay deem proper and just.: This section provides that when there is an amendment of the Plans and assessinent Of benefits filed with the chair-Man of the bdard of comihissiondrs, notice muSt: be ' , giVen thereof by publication for two insertions in .a . Weekly newspaper published in Osceola Disfrict of IgissiSsippi County, calling upon all Owners of, real PrOperty. within the:district east of Little River who may be ag . grieved by:reason 'of the assesSment or change of plans, to appear before the board of aSsessors at the time and place nained in 'the notice for the purpose of hav , ing i any Wrongful pr .:erroneous as g eSsment cdrreeted. 'It iS made 'the dutY:of . the assessors to hear any'complaint'and adjust anY error or Wrohgfnl assesSment, niakMg Snell final assesSnient as adjusted, 'the assessment of the improvement"un'tilthe next assessment, and providing that when the'4SSeSsment , bécomeS final it Shall be filed for' redôrd i ; n: the' 'c'ounty clerk 's office: •.. Subsequent. , sections „provide for ., the •correction • through the courts of : any erroneOus assessment of , bene-fi ts f , or.a tax on the benefits to-pay for t the ,cost.of the •rovemenf and . maintenance and retiring ,of,:the • and intere , bonds , st coupons, for the , borrowing of. money thy the
1204 GREEN V: WILLIAMS. [169 commissioners to pay the costs of initial expenses, and the issuing of negotiable evidence of indebtedness to contractors for doing Work, and Tor the issuance of negotiable bonds for completing the work contemplated in the organization of •the district, and making the assessment of benefits a preferential lien on all the real property ill the district. • A bart of § 5 is as follows : "All lands east of Little River, within the boundaries of said district, subject to assessment for State and county taxes at the time the . first aSseSsments of benefits are made under this act, shall, if benefited, be asSessed; and the 'assessors shall have the right once each year to feadjust the assessment of benefits, which shall . include all lands benefited by said improvemerit if subject to State and county assessments at that time, whether previouslY assessed or not." This section also containS provisions for notice .to property owners of such reasSessment or readjustment of the assessment of benefits, and, for appeal to the courts to cor-, rept any erroneous assessment. Section 9 proVides in. effect that the commissioners may petition the county court for the opening of new roads or . the widening of any roads previously established and, upon the granting of the petition by the county court, the commiSsiOners are given authority to proceed to improve the reads. . , Section 10 provides that the act is Supplemental, to, and in . aid . 6f, all existing laws . and not a repeal thereof, except where there may be a conflict, and that, in , case any section or clause is held to be unconstitutional, it shall not invalidate any other part of . the act. In White v. Arkansas-Missouri Highway District, 147 Ark. 160, there was involved the constitutionality of three special acts of the General Assembly of 1920, creating laterals to the road improvement districts which had been created by act No. 82 of the regular nssion of 1909' for the purpose of constructing a highway running from the city of North Little Rock through the counties of Pnlaski, Lonoke, White, Jackson, and a connection with the Alicia
ARK.] GREEN V. WILLIAMS. 1205 86-Walnut Ridge Highway on the county line at or near Alicia, giving a through route to the Missouri line. We held that the acts were unconstitutional and void, saying, among other things . "'These amendatory acts are not sufficiently. definite to stand alone. No machinery is provided under which these laterals can be constructed unless they are to be treated as being an enlargement of the original improvement, etc." We cited to support 'our conclusion, the case of Easley v. Patterson, 142 Ark.: 52where .we said, speaking of a provision of the law under review in that case : ' "It is difficult to discover' the meaning of the lawmakers from the language used in this provision.. It does not provide merely for the change of- boundaries for the purpose of including laterals or . changes in the route of the road, for that is provided for in another section. Giving the langunge the force which its use necessarily implies, it seems to confer authority for the creation of entirely new diStricts, but it is ineffectual for that purpose for the. reason that, there. is no provision made in the statute for the assessment of benefits and the levy and collection of taxes for that purpose. : The 'section is entirely inoperative, and is'therefore void." Counsel for appellant relies upon the above case of White. v. Arkansas-Missouri Highway District to Support his contention that special act- No: 99, which is Challenged by the complaint in the ease at bar, is likewise 'unconstitutional and void. But the facts set up in the Complaint in the case at bar, which are admitted by the -de-murrer, are entirely different from the facts in the case of White v. - Arkansas-Missouri'Highway District, sitpra, and also from the facts in the case of Easley v. Patterson, supra. In those cases no provision was Made in the special acts creating the laterals for the assessment of benefits, and the levy and collection of taxes thereon for the purpose of making the . improvementS contemplated by the special acts. Suck is not the ease at . all. with special act No. 99 of the -Acts of .1925, but, on the contrary,
1. 206 ' GREEN. V. WILLIAMS: [169 the provisions of. that act, as above set forth, constitute acomplete and workable law, with all necessary machinery for the assessment of benefits, the issuing of negotiable bonds to raise the necessary funds for the making of the improvement, contemplated, .and ithe., levying of taxes •on the benefits assessed for. the purpose of playing the bonds. . r •, ! • 2. :Counsel for Appellant next contends that, if the local act be not unconstitutional, the assessnient under it is nevertheless void under the.,provisions Of the local acL CounSel for appellant insists that; under the, provisions of ithe lócalcact; -the board . off asses§ors is prohibited from aSsessing, benefitson the lands West of Little River- to make the improvement contemplated, but that, notwithstanding . this provision; tthellands , west of! Little River have been assessed for the purpose of making.the improvement contemplated -tinder special act No. 99. We cannot concur:in this iyieW of counsel-for aPPellants. It is . ,contrary to the facts set forth in the complaint; which were-well-pleaded, and Whieh the dethurrer ndmits to the true; . On these facts; the trial court thade a . specialifinding as above.set. forth, and was justified in that 'finding, that the lands in the /district West of ; the river were not in fact reasse's g edrunder the sp,ecial het No. 99; but -that.;the :original assessinent; of ; benefits on the lands west.of river *as unchanged. The allegation in,the cOmplaint is to.the' effect that the ; appellant§ owning . lands eaSt of' the river were discriminated. against, because of the fact that the,board of assessors-in.making the reassessment for the improvement contemplated.under .special , act No. 99; merely adopted the original assessment of benefits. to the lands west of the river, but increased the assessment of benefit§ on the lands east of the river, which thereby placed the entire burden of the additional work contemplate& by.I the local act on the lands east of the river. -' : , The provisions of .the act.show that there would not be , any,additional benefit to -the lands. west of Little River: by the improvement contemplated, . but that the
AItKj GREEN V. WILLIAMS. 1207 lands east of the river would be benefited by reason of such improVement, and therefore the board of assesSors were authorized to Make such-alteratiOns 'ond modifica-ction of the asSessment of benefits 'On the real property in.the district east of Little Rivet, •and, if necessary, to made additional assessment of benefith on those lands as it deemed just and proPer . forthe purpose of Making the additional irnProvements oonteMplated. It was Certainly within the 'province of the LegiSlatUre, after t the original &Strict was ,created, to 'cOnfer upon the commissioners of the' district the power, with the approval of the county! court; to lay off andrimProve the laterals in the" manner contemplated by Special act No. 99.: That act, as we.haVe' seen, constitute'S a legislative' finding' that the:real. property•embraced in'the original district east of Little River. would derive 'additional benefits 'froin the improvement of ! the laterals; . land that 'the lands West 'of thd 'river would 41ot I deriVe . ariy-additional benefit from ,suCh. prevement, and delegated to , the oommissienerw the' power of ascertaining the amount of such benefits.. :This the Legislature has done . by act No.. 99, whiCli act, as . already stated, provides all the machinery required . for the-assessment Of the increased ' benefits' by reason Of the additional improVements in which every' interest' of the property owners in the entire . 'diStrict is fully protected.f • .7 ; ; ; ;• ' 3. ;, It is contended by-connsel fo ' r appellant'thAt' the work Contemplated, by act Nd. 99 cannot be' undertaken forthd reason thatit would involve the iSsuance of bonds by the district in an amciunt exceeding 30 per •cent. of tbe assessed : value of 'the property COntrary to theLpro-- vislons of the:Alexander road Mw under-which the 'district was 6stablished. Counsel argue that the-provisions of the Aleiander. 'road laik provide that bonds' shall 'not be issued for more than'30 per 'cent: 'of the assessed 'value of the'property in the district, which prevents the m'aking-of the. iniprovement contemplated by special act :No:.99, since that det did . nofTxressly change the provisionS + of the Alexander road law as to the 30 per cent. limit' of
1208 GREEN v. WILLIAMS. [169 the assessed value of the •property. ThiS contention overlooks the 'fact that the very purpose of the enactment of special act No. 99 was to provide for the.issuance of bonds and the making of iniprovements in the district that could not be undertaken because of the 30 per •cent. limitation fixed by the Alexander road law under which the original district was organized. The allegations of the complaint show that the amount raised by the issuance of bonds to make the improvement contemplated in the organization of the district was approximately 30 per cent. of the assessed value of.the property in the diStrict, and that 'this money had all been expended. Hence - it became necessary, in order to make .the improvements ments provided for, under act No. 99, as if such purpose tional issue of • bonds. . P The language 'of the provisions of § § 1, 4, 5 and 9 clearly shows that the Legislature intended to provide for an additional expenditure'to make the 'additional•improvement centemplated in the diStrict that would.exCeed the 30 per cent, limit of the Alexander road law. The language of these sections •is as plainly indicative of the legislative purpose to remove the 30 per cent. limit under the Alexander road law, and to exceed. that limit for' the making of the additional improvements provided for under act No. 99 as if such.purpose had been declared in express words. It was within the power of the Legislature to find, arid to provide, that the benefits of the additional improvements contemplated would exceed the original limit of 30 per cent. of the assessed value of the lands in the 'district and to authorize the commissioners to ascertain and fix the amount of such benefits. See McCord v. Welch, 147 Ark. 362. Subject to the constitutional , limitation that the cost of the improvement 'contemplated by act No. 99 shall not ceed the' benefits, 'there is no other limitation in that act upon the power of the commissioners to make the im-proveinent, and, if need' be, to expend the entire amohnt as shown by the reassessment of benefits in making the additional, improvementS. See Taylor v. Williams, ante p. 52. , .
ARK.] • GREEN V. WILLIAMS. 1209 4. No facts are alleged in the complaint which show that the assessment of benefits made pursuant to act No. 99 is void on its face. Such being the case, the appellants could not attack the assessments on other grounds e?c-cept in the manner prescribed by the local act, § § 3 and 5.. Davis v. Road Imp. Dist., 162 Ark. 98; Massey v. Arkan-sas-Missouri Highway District in Pulaski County, 163 Ark. 63. The appellants do not allege facts sufficient to show that they have followed the provisions of the local act No.• 99 in their attack upon the• assessment of benefits made pursuant to that act. The decree of the trial court sustaining the demurrer to appellant's complaint and dismissing the same is correct, and it is therefore 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.