The opinion
Hart, J., (dissenting.) It is true that this court has held that the legislative assessment of benefits is not subject to review by the court for a mere mistake of judgment, but that only the arbitrary abuse of the power will be controlled.
In Bush v. Delta Road Imp. Dist., 141 Ark. 247 , we held that taxation by special assessment' is defensible only upon the theory of corresponding special benefits to the property assessed, and that the question of benefits is a question of fact.
This was but a reiteration of the rule laid down in Coffman v. St. Francis Drainage District, 83 Ark. 54 . In that case the assessment of benefits was made by the Legislature, and it was held that the court could review the action of the Legislature upon proper' allegations and proof showing that the assessment of benefits made by the Legislature was such an arbitrary abuse of the taxing power as would amount to a confiscation, of property without benefit.
In the application of this rale to the present case we find that the assessment of benefits was filed by the commissioners in the office of the county clerk at Newport, in Jackson County, and that later on the same day a bill was introduced in the Legislature at Little Rock, one hundred miles distant, ratifying* the assessment made by the commissioners. While the Legislature may adopt its own method of ascertaining the facts and is not bound by any fixed rules of evidence in doing so, it can not act in an arbitrary manner. The act of the Legislature purported to ratify and confirm the assessments which had been made by the commissioners. These assessments had not been completed until they were filed in the office of the county clerk.
It was physically impossible for the Legislature, or any committee selected by it, to have examined these assessments and made any report concerning the same that called for the exercise of judgment. The action of the Legislature was arbitrary because the members thereof could not have exercised any judgment whatever in ratifying and confirming the assessments made by the commissioners.
Therefore, Judge Wood and the writer think that the legislative finding is subject to judicial review.
Again, the uncontradicted evidence shows - that the route selected 'by the commissioners was seventeen miles longer than necessary and was subject to overflow of considerable depth for a long distance. The undisputed evidence shows that there were periodical overflows and that the water would rise for a considerable distance, eight or ten feet above the level fixed by the commissioners for the road.
It is true that some of the engineers testified that the caving of the roadbed could be prevented by planting Bermuda grass along* the sides of the roadbed.
The road was to have a hard surface placed upon it. It is a matter of common knowledge that the water rising above the roadbed and standing there for awhile would tend to soften and cause the roadbed to disintegrate and thus soon wear away. Then, too, during the overflow forest trees and 'branches thereof would necessarily strike the hard surface of the road and break and disintegrate it.
No amount of testimony can overcome these physical facts of which every reasonable man must be aware. Taxation by special assessments is defensible only upon the theory of corresponding special benefits. There can be no special benefits where the physical facts show that the roadbed will disintegrate and its surface be broken and torn away in many places so soon after the road is constructed.
Therefore Judge Wood and the writer respectfully dissent.