The opinion
Hart, J., (dissenting). Judge Wood and myself agree that notice by publication is appropriate to the nature of the case; but are of the opinion that a publication for two weeks only is unreasonable, and therefore is violative of the “due process” clause of our Constitution. The imposition of assessments for local improvements by a board of assessors or other special tribunal is in the nature of a judicial proceeding, and when such assessment becomes final it is in the nature of a judgment against the lands upon which it is levied. Therefore the landowner is entitled to reasonable notice before any burden by way of special assessments is laid upon his land.
As the Hon. Joseph H. Choate once expressed it, the spirit of the constitutional rule is that the landowners shall have real bread in the matter of a hearing, and a publication of the notice for two weeks only puts them off with nothing but á stone. The notice by publication is for the purpose of apprising the landowners of the stated hearing upon their assessments to be given them by the board of assessors, and the notice should be published for a sufficient length of time to give the landowner an opportunity to acquire knowledge of the assessments and to prepare for his defense to it if he should deem it arbitrary, burdensome, or discriminatory. The constitutional validity of an act must be tested not by what has been done under it but by what may be done by its authority.
We agree that the publication of a notice for four consecutive weeks, as prescribed by the St. Francis levee act, construed in Ballard v. Hunter, 74 Ark. 174 , is fair and reasonable to the landowner. We do not think that the ten days allowed the landowner who feels aggrieved by the action of the commissioners in assessing his land to file his complaint in the chancery court should be counted, for two reasons. To the same effect see Roller v. Halley, 176 U. S. 398 .
In the first place, it is an established principle in all courts that the method of acquiring jurisdiction by publication is in derogation of the common law, and that the statutory requirements must be strictly construed in order to confer upon the court or other special tribunal jurisdiction in the premises. The object of the publication is to give the landowner notice of the hearing before the board of commissioners or assessors, as the case may be, and to give him an opportunity to prepare his case. Therefore the special tribunal ought to acquire jurisdiction in the premises before its action becomes final, and not afterwards.
In the next place, this court has held that the estimate of benefits is largely a matter of opinion, and that a great amount of deference is due to the judgment of the board of assessors, which is constituted as a special tribunal for the purpose of determining that question. Hence it was held that courts reviewing the proceedings of the assessors should not substitute the judgment of the judges for that of the assessors unless the evidence clearly shows that the assessments are erroneous. Rogers v. Highway Imp. Dist., 139 Ark. 322 , and Wilkinson v. Road Imp. Dist., 141 Ark. 164 .
So it will be readily seen that the landowner does not have the same chance to have his assessments corrected by review in the courts as he would have had in the first instance before the board of assessors, and a reasonable time should be given the landowners before the original hearing. The publication of the notice for a reasonable time is what gives the landowner constructive notice of the proceedings.
The statute provides that the commissioners shall designate a date not less -than ten days after the last insertion of the notice as the date for hearing complaints of the assessments. This is a legislative declaration that the service is complete at that time. Hence it will be seen that the court should not add ten days by judicial construction to the time allotted by the Legislature upon the specious plea that the landowner gets a de novo hear-' ing in the chancery court, when, according to the settled practice of this court, he gets nothing more than a review of the proceedings of the assessing board.
As a sort of make-weight argument, the majority opinion says that the current history of. the State shows that there had been a vast propaganda in the interest of good roads which resulted in the special road acts passed by the Legislature of 1919.
We have not read the history of the times through the same glasses. According to our view, there had been no public discussion looking towards the adoption of a system of constructing good roads throughout the State. Reckless and extravagant statements as to the cost of the roads and of the amount of Federal aid which would be received, which were calculated to lull the landowners into nonaction, were spread abroad after the passage of the special road acts.
The records of the Legislature show that no notice of the intention to pass any of these special acts was given and exhibited in the General Assembly, as required by art. 5, sec. 26, of our Constitution. During a legislative session of sixty days one volume of general acts of five hundred and twenty-two pages was passed; and there was also one volume of special acts of ten hundred and sixty pages. In addition to these the special road acts were published in two volumes, with a total of twenty-seven hundred and sixty pages of the size of those used in an ordinary law book. The roads provided for are not part of a system and have no relation to each other. It would have been a physical impossibility for these special acts to have been read three times, as required by our Constitution, within sixty days.
Special acts, under what is called legislative courtesy, are passed upon the request of the members introducing them. Referring to the history of the times recited in the majority opinion, we find that these special road acts were enacted for all the counties in the State. Not only was there no provision for giving the landowners a voice in the necessity or expediency of passing the acts imposing the whole cost of constructing the improved roads upon the landowners, but, in order to prevent a referendum to the qualified electors, the last section provides that, the act being necessary for' the immediate preservation of the' public peace, health and safety, an emergency is declared, and it shall take effect at once.
The court records will show that many of these special acts were prepared by attorneys representing special interests; and, if current history is the criterion, practically all of them were prepared by such attorneys, and protesting landowners were given no voice in the matter, although each act called for a bond issue of twenty-five or thirty years’ duration.
Local assessments are not founded upon any idea of revenue, but upon the theory of special benefits conferred upon the adjacent lands. If an illegal method of .assessment is adopted, it is the same in principle as if no assessment at all was made, and the special tax imposed amounts to an illegal exaction, which a landowner may resist whenever it is attempted to be asserted. Thus it will be seen that the system is open to grave abuses, and may lead to oppression and confiscation. Hence the importance to the landowner of being- given a reasonable time to act in the first hearing, to the end that he may not be deprived of his property without due process of law.
The fair name and fame-of our State can best be kept inviolate by giving the landowners a reasonable opportunity to be heard before fixing a burdensome or arbitrary special assessment on their lands, and such reasonable notice should be one that would carry into practical effect the declaration of our bills of rights, that all men have the inherent and inalienable right of acquiring, possessing, and protecting property; and its guarantee that the right of property is before .and higher than any constitutional sanction.
We recognize that, after the board of assessors ox-other special tribunal has oxxee acquired jurisdiction over the lands, short statutes of limitations might be provided withiix which to review these assessmexxts. The landowner is theix already in court, so to speak, and should prosecute with diligence his right to review the fixxdixxg of the board of assessors, to the end that the construction of the improvemexxt may not be unduly delayed.
Protestixxg, as we have often done before, against the zone system of assessixxg road districts, we believe that the present case goes further than any other previous decisioxx ixx upholding such a -system. It is true that the Legislature may commit to a special tribuxxal the power of apportioning the cost of an improvement and assessing the expense thereof, unless the method prescribed is plainly unadapted to arriving at a fair and equitable result. The Legislature has no power itself to make arbitrary assessments, or to grant power to subordinate tribunals that may be so exercised.
In Rush v. Delta Road Imp. Dist., 141 Ark. 247 , we expressly stated that the power to make special assessments for local improvements and the power of apportioning them are identical and inseparable. Hence it was held in the last-cited case that in making the assessment it is proper to consider the nature and location of the lands in the district, the condition and character of the improvement, the cost and relative value of the property to the assessment, and as well the fact whether the plan and method .adopted has resulted in imposing a burden in substantial excess of the benefits or disproportionate as between the landowners in the district.
In other cases we have recognized that local assessments may so transcend the limits of equality and reason that its exaction would cease to be a tax and become extortion and confiscation. Coffman v. St. Francis Drainage District, 83 Ark. 54 , and McClelland v. Pittman, 139 Ark. 341 . Relief was denied in the cast last cited because the complaint did not allege the specific facts which would constitute the arbitrary abuse of power. In other words, the Legislature cannot act or authorize a subordinate tribunal to act upon an illegal principle of assessments or arbitrary method in making- or apportioning it. • ”
In re Washington Avenue, 69 Penn. St., 352, the court expressly stated that taxation has a limit per se, and is not always coextensive with legislative exaction. Continuing, the court said:
“But, nevertheless, taxation is bounded in its exercise by its own nature, essential characteristics and purposes. It must therefore visit all alike in a reasonably practicable way of which the Legislature may judge, but within the just limits of what is taxation. Like the rain, it may fall upon the people in districts and by turns, but still it must be public in its purpose, and reasonably just and equal in its distribution, and cannot sacrifice individual right by palpably unjust exaction. To do so is confiscation, not taxation,- extortion, not assessment, and falls within the clearly implied restriction in the bill of rights.”
This court had this principle under consideration in Radcliffe v. Scruggs, 46 Ark. 96 . In that case the court had under consideration a statute which provided, in substance, that all actions to test the validity of any proceeding in the appraisement, assessment, or levying taxes upon any land and all proceedings seeking to show any irregularties of any officer having any duty to perform in the assessment, appraisement, levying of taxes, or in the sale of land delinquent for taxes, or proceedings seeking to .avoid any such sale for irregularities, shall be commenced within two years from the date .of sale, and the court held the act to be unconstitutional. In discussing the statute the court said: '
“But in this sweeping enactment the legislative department transcended the boundaries of its powers. It could not, under the Constitution of 1868, or any similar constitution, enact a statute which should transfer one man’s property to another under a guise of a sale for nonpayment of taxes, when there had been no assessment or no levy of taxes. This would not be due process of law. Neither could it prescribe a short-period of time, nor indeed any period, within which the owner -must make'his objections for such fundamental defects, lie remaining in possession and being, in the instance supposed, in no default for not paying his taxes.”
Again, in Stiewel v. Fencing District No. 6 of Johnson County, 71 Ark. 17 , the court had this principle under consideration as applied to improvement districts, and it was held that defects which aré jurisdictional and indispensable could not be cured by limitation statutes; and the case of Radcliffe v. Scruggs, supra, was cited to support the holding.
A- short recitation of the undisputed facts in this case will show that the assessment of benefits by the zone system, in this case resulted in .an arbitrary discrimination against the appellant. She owned a farm comprising about 3,000 acres, but only 700 acres are in cultivation or susceptible of being put in cultivation by any practical method. The rest of her lands are covered by lakes and other bodies of water to such an extent that, according to the undisputed evidence, it is not practical to drain it and thereby render it fit for cultivation. Notwithstanding this, all her lands were assessed under the zone system, a»d the lands under water were assessed at the same rate as those in cultivation, where they were the same distance from the road. The board of assessors were bound to know the condition, the character, and configuration of the earth’s surface within the proposed district. We recognize that courts cannot review the power of the Legislature, or its subordinate agency in the premises, unless the assessment has been made upon a demonstrable mistake of fact or that in making it the Legislature or its subordinate agency applied an illegal principle, or arbitrary method of assessment.
The zone system, as applied in the present case, under the undisputed evidence fails, as unreasonable and not a fair substitute for a valuation made by a designated tribunal acting according to law, and therefore violates the “due process of law” clause in our Constitution, which is a limitation upon arbitrary power and is a guaranty against arbitrary legislation. When the condition and character of the soil and the configuration of the earth’s surface are taken into consideration, it is evident that the zone system of assessments in road improvement districts is necessarily arbitrary and discriminatory.
It is not like the case of a drainage or levee improvement district, where the land is covered with 'water and the construction of the drainage ditch or the levee reclaims it. In such case it is impossible to foresee exactly how a proposed tax will fall, and if the construction of the improvement increases the value of the different classes of land within the district proportionately, the burden will be distributed in as fair and just way as can be done. But in road improvement districts the case is different. The road which it is proposed to improve is already laid out and in use; it serves the landowners adjacent to it, as well as the general public. As above stated, its situation with reference to the land is known in advance of the assessment. To charge- the cost of the improvement upon farm lands lying within a designated distance on each side of the road at a fixed sum per acre necessarily results in discrimination, and is so obviously onerous and unreasonable that it cannot, on any fair principle of reasoning and justice, be said to be .a valuation according to benefits.
The kind and character of the soil and topography of the lands in the district do not change. Natural objects, such as lakes, streams, hills, and hollows remain the same, so that it cannot be said that the proof might be one way in one case and another way in a subsequent case. If an arbitrary or illegal method of assessment is adopted in the first instance, it is the same as if there had been no assessment of benefits, and the landowner has a right to resist at any time a suit to place a lien upon his property as an illegal exaction, if he remains in possession of his land by himself or through tenants.
Therefore we respectfully dissent, without expressing our opinion on the other questions raised by the learned counsel for appellant.