# Massey v. Arkansas & Missouri Highway District

> Supreme Court of Arkansas · March 3, 1924 · 163 Ark. 63

URL: https://www.frixlaw.com/law-library/cases/7812665

## Case

- **Full name:** Massey v. Arkansas & Missouri Highway District in Pulaski County
- **Court:** Supreme Court of Arkansas
- **Decided:** March 3, 1924
- **Citations:** 163 Ark. 63; 259 S.W. 387; 1924 Ark. LEXIS 258
- **Precedential status:** Published
- **Opinion:** Dissent by Hart
- **Judges:** Hart, McCulloch
- **Cited by:** 8 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

Hart, J., (dissenting). Judge Wood and myself
think that the majority opinion in this -case is contrary to the principles of law decided in the majority opinion in the case of White v. Ark. & Mo. Highway Dist. of Pulaski County, 147 Ark., p. 160. In that case it was held that the amendatory acts to the act creating the Arkansas & Missouri Highway District in Pulaski County were not sufficiently definite to stand alone. The amendatory acts provided for certain laterals, and the court held them void, because no machinery for making assessments was provided by the amendatory acts.
The territory added by a-ct 198, passed by the Legislature of 1923, is in all essential respects the same as the territory added by act 356, enacted by the Legislature at the extraordinary session in 1920. The language used in the -act of 1923 reads as follows: “ * and all quarter sections of land north of the Arkansas River where any part of same is within five miles of said road as planned shall be added to and included in the district, if not now included in the district.” Special Laws of 1923, p. 380.
Section 2 of act 356, approved February '25, 1920, reads -as follows: “Section 2. All quarter sections of land in Pulaski County north of the Arkansas River, any part of which is within five miles of the road hereby authorized to be laid out and constructed, that are not already in the Arkansas & Missouri Highway District in Pulaski 'County, shall he added to and included in said district.”
■Section 7 of act 356 provides that said roads shall be built under all the terms and conditions of act 82, which was the original act, or other acts amending the same.
Tn the White case it was held that this section did not confer authority upon the commissioners to make the assessment. The court said that the whole improvement was to be built as a unit, and the entire betterment should be assessed as a unit. The Chief Justice dissented on the ground that this language expressly conferred the power to build the laterals, and referred to another statute for the method and machinery to be used in making the assessments.
The present act does not even contain a provision authorizing a new assessment to be made under the terms of the original act or any act amendatory thereto. It is well settled that assessments can only be made under power conferred by statute. The board of commissioners act as the agent of the property owners whose interests are affected by the duties it performs. The powers exercised by the board of commissioners to construct the improvement, or as a board of assessors to assess benefits, are derived directly from the Legislature. The Legislature may prescribe the manner in which the commissioners may compel the property owner to contribute to the improvement of the public roads situated in the improvement district, and from which, in the opinion of the Legislature, he derives a benefit; but the powers thus conferred must be strictly followed. The reason is that the power to construct these improvements by the commissioners as the agents of the property owners, and with which the latter must comply, although no party to any of the proceedings, being derived solely from legislative enactment, the courts, instead of enlarging such powers by construction which, even when exercised within proper bounds, must often prove onerous and oppressive to the property owners, should réquire a strict complianee with the act conferring the powers. This is necessary for the benefit and protection of the landowners. The assessment, when completed, becomes a lien upon the lands, and it is of first consequence to the landowners to be informed of the extent to which this lien is fixed on their lands.
There is no provision in the present act providing for any method of assessing benefits against lands, and a landowner could only surmise that an assessment would be made under the terms of the original act. New territory is added to the old district, and provision is made for the construction of additional roads. Therefore some'provision should be made in the amendatory act for a new assessment of benefits, if the Legislature thought a new assessment should be made. We believe that the Legislature did not make or attempt to make provision for a new assessment of benefits upon the lands designated within the boundaries of the district by the amendatory act, and that the court should not supply this defect or omission by any process of judicial construction. The power of assessing benefits should only come from direct legislative action, or the action of such persons or bodies as may be directly delegated with sufficient authority to make the assessment.
Once more, we feel called upon to protest against the zone method of making assessments in cases like this. When the original act and all the amendatory acts are read together, it is evident that the rule by which the commissioners profess to govern themselves was not that which they in fact applied; and that the assessments made by them are not assessments according to benefits, although attempted to be disguised in that form. The theory upon which local assessments are sustained is that the lands assessed are locally and peculiarly benefited over and above the ordinary benefits to the extent of the assessment. Special assessments can be sustained alone upon the principle that those lands which enjoy the benefits shall equally, or according to an equitable rule of apportionment, bear their just share of the burden. Ño equitable apportionment is attainable under the method of assessment adopted, in the present case.
The expert for the commissioners testified: “The benefits as computed are based upon the work already done by the district, and maintaining the same, and on doing the following new work and none other.”
Now the East Ninth Street lateral in North Little Bock had already been constructed at great cost, and the act providing for it was expressly held invalid in the 'White case referred to above. No provision is made for the maintenance of the new part of the road to be constructed by the amendatory act of 1923. No provision is made in any of the other acts for maintaining it. It is admitted that the assessors considered the parts of the road held invalid in the White case in making the assessment of benefits. No separation of the benefits of construction or of maintenance is made or attempted to be made. The legal and illegal parts of the roads to be improved are yoked together. This makes the assessment illegal on its face.
Then too, the district was divided into zones for the purpose of making the assessments. The cities of Little Bock and North Little Bock and the rural lands within five miles of the improved roads are included in the same district.
The fact that the two cities have separate business and residence districts is disregarded. No regard is had to any difference of character in the rural lands; and no attention is paid to the fact that they are served by other public roads leading into North Little Bock or Little Bock. When the density of population of the two cities and the varying and • different character of the outlying territory are considered’ the frontage rule or zone system of assessment will necessarily result in irregularities and discriminations in making the assessment of benefits, and is theref ore arbitrary. The burden cannot be apportioned with any proximate equality by merely considering the distance of the urban and rural property from the roads to be improved. In this connection it may not be inappropriate to say that we consider the building of laterals in the two cities, without the consent of a majority in value of the property owners affected, to be violative of art. 19, § 27, of our Constitution.
We are of the opinion that the proceedings under this act are invalid because there has been no election held in compliance with § 25 of the high way act passed at the special session of the Legislature of 1923. We think the object of § 25 of that act was to prevent further proceedings in districts like the present one until the majority of the landowners in number and in value in the district shall vote, at an election held for that purpose, that the construction of such improvemen ts be proceeded with.
Therefore we respectfully dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7812665. Public record. Not legal advice.