270 S.W. 91 | Ark. | 1925
Appellees are the commissioners of a road improvement district in Pulaski County, designated as Little Rock-Levy and Park Hill Paving District No. 4, created by special act of the General Assembly, and they instituted this action in the circuit court of Pulaski County to compel appellant, the county court, by peremptory mandamus, to apportion to said improvement district its alleged share of road funds prescribed by statute. They alleged in their petition for mandamus that they had filed an application, or petition, with the county judge asking for a distribution of funds, and that the county judge denied the petition and refused to apportion any funds to the district. Appellant demurred to the petition of appellees, which was overruled, and then answered, and, upon the facts stated in the pleadings, the court awarded the writ as prayed for in the petition of appellees.
The statute which forms the basis of the proceeding was enacted by the General Assembly of 1923, and is applicable only to Pulaski County. Special Acts 1923, p. 370, section 1 of the statute, reads as follows:
"The county court of Pulaski County shall set aside from time to time, into what shall be known as a `fund for building permanent roads,' a sum that shall be one-half of all road funds of every class and kind that may come into the hands of the county court for use by the county court on the roads of Pulaski County, which shall include 50 per cent. of the county courts portion of any of the following taxes: three-mill road tax, gasoline tax, per capita tax, automobile tax, or any other tax now or that may hereafter be levied and collected for use on the roads and highways of Pulaski County."
Section 2 provides that an improvement district organized upon the petition of property holders "for the purpose of building roads, highways or public thoroughfares, *273 where the improvement contemplated shall provide for a paved road surface of concrete or asphalt pavement on a concrete base, shall, on filing of plans thereof, have the right to petition the county court of Pulaski County for aid out of said `funds for building permanent roads,' in an amount that will not exceed one dollar per square yard for the pavement that the district proposes to build, as shown by plans and specifications filed," and that it shall be the duty of the county court to make and enter an order allowing such district such aid as the county court may deem wise and expedient, taking into consideration the importance of the road seeking aid, however, not less than fifty cents nor more than one dollar for each square yard of concrete pavement or asphalt type pavement laid on concrete base, that the district proposes to build, shall be allotted any such district.
There are other sections of the statute not deemed pertinent to this controversy, except the concluding sentence of 5, which reads as follows: "Any provision of this act may be enforced by mandamus by any taxpayer of Pulaski County."
It is further contended by counsel for appellant, as grounds for reversal, that the remedy sought by appellees is not available, and that there should have been an appeal from the judgment or ruling of the county court in refusing to make the distribution of funds. Counsel invoke the rule, often announced by this court, that remedy by mandamus cannot be made a substitute for an appeal or writ of error (Basham v. Carroll,
It is contended that the statute providing for the distribution of funds is unconstitutional and void, first, for the reason that it constitutes an invasion of the jurisdiction of the county court over highways and the disbursement *275
of revenues of the county. Prior decisions of this court settle that question against the contention of counsel. Texarkana v. Edwards,
It is contended that the views now expressed, as well as the holding of the court in the cases cited above, are in conflict with the decision in the case of State v. Berry,
It is further contended that the statute is void because it discriminates between rural road districts and districts within the city of Little Rock, and also between improved roads of different types. The answer to this contention is that the control of the Legislature over the tax is supreme, and the rule of uniformity in the distribution of revenues raised by such taxation does not apply. Sanderson v. Texarkana,
Finally, there is a bare suggestion in the brief of counsel for appellant, without extended argument, that the record fails to show that the road improved by the district in question was a public highway, and that it does not fall within the terms of the statute under consideration. It has been held by this court that improvement districts cannot be organized to improve roads other than public highways (Glover v. Improvement District,
It was a district organized by order of the county court on petition of a majority of the owners of property, and the presumption is conclusive that the road to be improved was established as public highway.
This disposes of all the questions raised on the appeal, and, since we have reached the conclusion that the statute is valid, and that the judgment of the circuit court thereunder was correct, it follows that the judgment must be affirmed, and it is so ordered.
WOOD and HART, JJ., dissent. *278