154 Ark. 311 | Ark. | 1922
Road Improvement District No: '10 of Pulaski County was created by special statute enacted by the General Assembly at the regular session in the year 1919, and there were subsequent amendments which do not affect the questions involved in the present litigation. Eoad Acts 1919, p. 1814.
The effect of the statute was to create six (6) subdistricts or sections, numbered, respectively one to six, which were tantamount to six separate districts, all operating under the same board of commissioners and other agencies. The statute was held to be valid by a decision of this court, Cumnock v. Alexander, 139 Ark. 153. Subdistrict No. 4 was eliminated from the statute by later enactment.
The statute provides, in substance, for the improvement in subdistrict No. 1 of the public road known as the Fort Smith road from a certain point in North Little Eoek to the Faulkner County line at Palarm Creek bridge; and also provides for the improvement of a road in the same subdistrict designated as the Eiver Loop road, branching off from the Fort Smith road and running along the established public road through Crystal Hill to a point of junction with the Fort Smith road south of Palarm Creek bridge.
There is a provision for improvement in subdistriet No. 2 of the public road known as the Baucum road, beginning where it intersects the road known as the Galloway pike and running through Baucum and over the bridge at Ashley Bayou to Scott’s pike, and thence south and west to the Lonoke County line.
There is provision for improvement in subdistrict No. 3 of the road known as the Pine Bluff road, running out East Ninth Street in Little Eoek from Main to Barber, thence south on Barber to the city limits, and thence south though Sweet Home and Wrightsville to the county line.
There is provision for improvement in subdistrict No. 5 of a road designated as the Twelfth Street pike, running out Twelfth Street from Main to the city limits, thence west to Ferndale.
There is provision for improvement in subdistrict No. 6 of a road designated as the Perryville road, running out Markham Street from Main to Victory-, thence south on Victory to Third, thence west past Forest Park, and thence northwesterly to Cross Eoads; and there-is also provision for improvement in the same subdistrict of a lateral road, running northward from the main road at a certain designated point to Eoland.
All of the roads designated were established public highways.
The statute declares that it shall be the duty of the commissioners to “construct, repair or improve the roads or parts of roads hereinbefore described, by grading, draining, and surfacing them, in such manner and with such material as the commissioners deem best for the interests of the district, with full power to construct bridges, culverts and all necessary appurtenances of said roads.” The commissioners formed plans for the several improvements to the extent of such improvement or repairs as they decided to make, and reported the plans and estimates to the county court, and the same were approved by the court. Certain changes in the routes of established roads were planned, and the county court made such changes in the manner provided by statute.
The present action was instituted in the chancery court by appellant, who is a citizen and owner of real property, to restrain the commissioners from carrying out the plans of improvement, on the alleged ground that the proposed plans constitute departures from the authority contained in the statute. The case was heard below on the pleadings, plans for the improvements, and other record evidence, and on oral testimony, and a decree was rendered dismissing the complaint for want of equity.
The basis of the several attacks on the proceedings of the commissioners are the following features of the proposed plans:
The route of the Fort Smith road is. slightly changed in two places, and there is a slight change in the route of the road designated as the Eoland lateral of the Perry-ville road; that is to say, the routes of these roads have been changed by orders of the county court since the enactment of the statute now under consideration, and the plans of the commissioners conform to the changes of routes made by the court; the improvement of the Biver Loop road in su'bdistrict No. 1 is eliminated from the plans, and likewise the improvement of that part of the road in subdistriet No. 2 from the intersection with the Baucum road south and west of the Lonoke County line, the improvement of that part of East Ninth Street in subdistrict No. 3, the improvement of that part of Twelfth Street from Gaines to Lewis, in subdistrict No. 5, and the improvement of that part of Markham and Victory Streets in su'bdistrict No. 6.
The evidence in the case shows that the proposed changes are highly expedient from a standpoint of economy and practicability. The changes in the route of the Fort Smith road were made to eliminate dangerous railroad crossings, on account of which Federal Aid funds for the district would be denied; and the changes in the Boland lateral were made to obviate steep grades. The improving of East Ninth, Markham, Victory and Twelfth Streets was eliminated because they are now paved and in a fair state of repair. The Biver Loop road is now a good graded country road, running through a sparsely settled, rough territory, and the cost of two high-priced roads in the same territory is not justified, the main Fort Smith road, to be made a hard-surface road, having been selected as a primary road by the .State Highway Commission. The road in subdistriet No. 2, running south and west to the Lonoke County line, is a macadam road in good state of repair. The Baucum road is also a macadam road somewhat out of repair, and this part of the road is to be repaired under the proposed plans, and this improvement, when completed, will make the whole of the designated road in that subdistrict a macadam road of the same quality and state of repair,
The proposal to change the routes of certain of the roads is attacked on authority of the previous decisions of this court. Pritchett v. Road Improvement District, 142 Ark. 511; Nunes v. Coyle, 148 Ark. 365. Those cases are not in point for two reasons: first, that the changes in route referred to in those cases were substantial, whilst in the present case the changes are comparatively inconsequential and do not lessen the beneficial effects on the contiguous property; and second, in those cases the districts were organized under general statutes on petitions of property owners, wherein the routes of the roads were specified, whereas, in the present instance the statute only designates the established road by name, and the changed routes still fall within the statutory description. We are of the opinion that the changes were not sufficiently material to destroy the identity of the project with the authority given in the statute.
It is next contended that the elimination of certain parts of the roads is unauthorized, and counsel for appellant relies on the decision of this court in Phillips v. Tyronza and St. Francis Road Imp. District, 145 Ark. 487. We must look to the language of the statute now under consideration, which contains the sole authority of the commissioners, and we find that different from the authority conferred by the statute dealt with in the case cited. There the statute described the road to be improved, including laterals, as a unit, and conferred no discretion concerning the portions to be improved. In the present instance the statute confers discretion on the commissioners either to construct anew or to repair the roads which were duly established highways, and such materials are to be used “as the commissioners deem best.” Now this does not require the commissioners to improve roads already sufficiently improved, or to repair roads already in a good state of repair, sufficient for the practical uses of travel. Of course the assessment of benefits will be more or less affécted by the extent and cost of the improvements or repairs and the proximity of the lands to those portions of the roads which are to he improved or repaired, bnt the statute gives the commissioners authority to exercise discretion as to the character and extent of the improvement. We do not think that the authority conferred by the statute has been exceeded.
There is one other feature of this case which needs only to be briefly mentioned. It is shown that the proposed plans contemplate the improvement of the Perry-ville road a short distance beyond the limits of the district. The cost of this extension is very little — about one hundred dollars, the evidence shows — and now, since objection is made by a property owner, it is conceded that the extension is unauthorized, and it is to be fairly inferred that the commissioners have abandoned this extension.
Decree affirmed.
