277 S.W. 515 | Ark. | 1925
Lead Opinion
This is a proceeding instituted in the county court of Jackson County to annex property to a road improvement district pursuant to statute. Crawford Moses' Digest, 5399, 5426. Appellants are owners of the of the real property sought to be annexed, and they protested against the annexation and against the assessment of benefits and took an appeal to the circuit court, where the cause was heard and final judgment rendered approving the assessment of benefits and ordering the annexation of the property in accordance with the prayer of the commissioners of the district. There was formerly another proceeding to annex the same property, with the exception of one tract, and on appeal to this court it was decided that the judgment annexing the property was erroneous on account of the omission of certain benefited tract of land. Sanders v. Wilmans,
Appellees contend that the judgment of this court on the former appeal constituted an adjudication of all the issues involved, and that that judgment is a bar to a readjudication of those issues. We are of the opinion that the doctrine of res judicata does not apply, for the reason that this is an independent proceeding between parties other than those who were parties to the former appeal, and that they are not bound by the former judgment as an adjudication of their rights. Counsel for appellees rely on the recent case of Howard-Sevier Rd. Imp. Dist. v. Hunt,
It becomes necessary, however, to discuss the additional grounds of attack upon the validity of the proceedings and the correctness of the judgment of the circuit court.
All of the additional funds, except the question of the correctness of the assessment, relate to the validity of the original proceedings establishing the district. In the former opinion we held: "In the proceedings adding additional territory found to be benefited by the improvement, the question of the validity of the original organization only arise collaterally, and the validity of the district cannot be challenged on account of mere errors and irregularities in the original organization. If, however, the organization is void on account of jurisdictional defects — in other words, if the lack of jurisdiction appears on the face of the proceedings — the question could be raised collaterally." That statement of the law is adhered to now, and the inquiry here is whether or not there were defects in the original organization on the face of the proceedings which render the same void.
The statute (Crawford Moses' Digest, 5427) provides that notice of the hearing of a petition to organize a district shall be published for two consecutive insertions in a newspaper having a general weekly circulation in the county. We have held that the publication of notice is jurisdictional, and that it must accurately describe lands to be included in the formation of the district. Norton v. Bacon,
It is next contended that the original proceedings were void because of a material variance with respect to the description of the route of the road to be improved between the preliminary surveys, plans and specifications filed with the county court and the description in the petition and plats accompanying the same which were designed by the property owners. The remonstrance of appellants sets forth the facts which constitute the variance. There was a demurrer sustained to that paragraph of the remonstrance.
The general statute authorizing the organization of road districts (Crawford Moses' Digest. 5399 et seq.) yes that a majority of the owners of land in value, acreage or numbers within a proposed improvement district petition the county court to establish a district to face a certain region which it is intended shall be embraced within the boundaries of the district and file a plat with the petition, "upon which the boundaries of the proposed district shall be plainly indicated, showing the roads as it is intended to construct and improve as nearly as practicable." Notice shall be given, etc., of a hearing on the petition, and, upon application of ten property owners, or of the county judge, the State Highway Commissioner shall prepare preliminary plans and specifications and also prepare petitions to be presented to property owners. We construed this provision of the *677
statute in Lamberson v. Collins,
The contention is made that the organization is void for the reason that, according to the records of the county court presented in the present proceeding, the court was not legally in session at the time the order was made organizing the district on June 22, 1917. This contention is based on a showing that the order was made on an adjourned day, the court having adjourned over to *678
another date, and that the probate court by previous was in session on the shame day, which caused a lapse of the term of the county court. Counsel for appellants invoke the rule that the law takes no cognizance of parts of days, and that two courts cannot be held by the same judge on the same date. Counsel rely upon decisions of this court with respect to sessions of the circuit court in different counties. Central Coal Coke Co. v. Graham,
There is a contention that the annexation proceedings were void because at the time thereof one of the acting commissioners was not legally appointed, in that he has appointed by the county court up on the resignation of his predecessor. The contention is that under the statute there was no authority in the county court to appoint a commissioner to fill a vacancy caused by death or resignation, and that the only authority vested in the county *679
court to make appointment where there has been a failure of one of the commissioners to qualify. The statute (Crawford Moses' Digest, 5405, 5406) provides that upon the organization of the district the county court shall appoint three persons, owners of real property in the district, to act as commissioners, who shall duly qualify to take the oath of office required by the Constitution, and that, if any member of the board of commissioners fails or refuses to take the oath of office within thirty days after being notified of his appointment, he shall be considered to have declined to serve and the vacancy be filled by order of the county court. There is no other express provision in the statute with respect to filling vacancies, hence the argument is made that the county court is without authority to make an appointment to fill any vacancy which occurs otherwise than by reason of the failure of one of the original commissioners to qualify. In other words, it is contended that there is no authority to fill a vacancy caused by death or resignation. It is not presumed that the lawmakers intended to leave a hiatus in the statute with regard to filling vacancies. While the statute contemplates a continuous holding of office by the original commissioners without authority on the part of the county court to remove (Taylor v. Wallace
There is a further contention that the assessment of benefits on the property sought to be annexed is void because of the alleged qualification of some of the assessors. The statute (Crawford Moses' Digest, *680 5419, 5420) provides that the county court shall appoint the assessors, who shall take the oath prescribed in the Constitution, and that, upon the failure of an appointee to qualify within thirty days, he shall be deemed to have declined to serve, and the vacancy shall be filled by appointment by the county court of some other person. The statute also confers authority on the county court to remove assessors for good cause shown. It is contended, the same as with respect to the appointment of commissioners, that the court had no authority to appoint in the case of a resignation, but only in case of the failure of an assessor to qualify. This contention is unsound for the same reason that we have given in reply to the contention in regard to the appointment of commissioners.
It is also urged that the assessors took the oath before a notary public, an officer who possesses no statutory authority to administer official oaths, and that the whole of the assessment is void for that reason. We do not stop to analyze the statute for the purpose of determining whether or not an official oath may be made before a notary public, for we are of the opinion that a failure to take the prescribed oath before the proper officer affords no grounds for nullifying the assessment. Moore v. Jacks,
Nothing remains but to determine the correctness of the court's ruling with respect to the fairness and equality of the assessments of benefits. This is purely a question of fact presented upon conflicting testimony, and we find no reason for disturbing the finding of the court on that issue. It would serve no useful purpose to set *681 out the testimony in detail. It is sufficient to say that the finding is supported by the evidence.
The judgment of the circuit court is therefore affirmed.
HART, J., dissents.
Dissenting Opinion
Counsel for appellant urge for consideration a point thought to have been overlooked by the court, namely, that the original organization of the district is void for the reason that one-fourth of a mile of the road authorized to be constructed lies entirely outside of the district.
The allegation in section "B" of the first clause of the remonstrance in the affidavit for appeal from the county court contains a statement that one-fourth of a of the road lies wholly in the southwest quarter of section one, township eleven north, range three west, and that tract was not included within the boundaries of the district. The plats in the record show that this charge is not well founded, but that the road, instead of running through the quarter-section mentioned above, is on the boundary line between that tract and another tract on the south, which is included in the district. It is true that the southwest quarter of section 1 was not in the boundaries of the original district, but it is a portion of the territory now sought to be annexed. It constituted error in the original proceeding not to include that tract land, but its omission was not such a defect as would render the organization void on the face of the proceedings Hill v. Echols,
This question was raised by demurrer to the remonstrance, and the rule is that on demurrer to pleadings the facts are treated as being true for the purpose of testing the sufficiency of the demurrer. This, however, *682 is a special proceeding, and the allegation in the remonstrance comes as a part of the designation or assignment of the grounds of appeal, as provided by statute. Crawford Moses' Digest, 5403. This statute provides that an owner of real property may appeal from the judgment of the county court establishing the district and shall file an affidavit for appeal, "stating in said affidavit the special matter upon which said appeal is taken." The demurrer to the specification in the affidavit reaches back to the record in the case, including the petitions and the plats and the order of the county court establishing the district, and the court has the right, in testing the sufficiency of the demurrer, to consider the allegations in connection with the whole record. We think that the court was correct in deciding that the charge that a part of the road to be constructed lies outside of the district is not sustained by the record.
Counsel reargue some of the questions decided in the original opinion, but we adhere to the conclusions that there was no error in the proceedings, and that the judgment should be affirmed.