(dissenting). There is no use in threshing over old straw, and while it must be admitted that there is a far cry from Road Improvement District No. 1 v. Glover, 89 Ark. 513, where it was held that the county court might form improvement districts in parts of the county for the purpose of improving the public roads and then taking over the roads to be maintained as part of the highway system of the county, to Dickinson v. Reeder, 143 Ark. 228, where it was held that a statute authorizing the perpetual continuance of the board of commissioners for the purpose of repairing and maintaining the road after its improvement was not violative of the Constitution, and other cases holding valid statutes providing for the organization of the whole county in separate improvement districts and the inclusion of the same land in several districts. Judge Wood and myself think that the present case is another attempt by the Legislature to wrest from the county courts the jurisdiction over roads conferred upon them by our Constitution.
The statute under consideration provides that, subject only to the general supervision and control of the county court, as provided by the Constitution, the board of commissioners shall have exclusive jurisdiction over the construction and maintenance of the improved road. The use of the words, “exclusive jurisdiction,” conferred upon the commissioners was an evident attempt to arrest any active participation by the county court in the matter. By the use of the words, ‘ ‘ general supervision and control of the county court,” the Legislature evidently intended to define what the framers of the Constitution meant by giving the county courts exclusive original jurisdiction in all matters relating to roads, bridges, etc., in section 28, article 7 of the Constitution of 1874. This is shown, not only by the language used in the section just referred to, but in the other sections of the act.
Other sections of the act confer upon the commissioners power to make the improvements, to levy assessments for the construction of the same, and also to levy assessments for the maintenance of the roads after the improvements are finished. To give the commissioners exclusive jurisdiction over the construction and maintenance of the improvements, subject only to the general supervision of the county court, as provided by the Constitution, is an attempt on the part of the Legislature to take away from the county court all its jurisdiction except to approve the action of the commissioners, and, in exercising its power of approval or supervision, the county court could only say, “Well done, thou good and faithful servant,” regardless of its better judgment. If the commissioners can exercise exclusive jurisdiction to construct and maintain the road, what is left for the county court to supervise?
The framers of the Constitution did not confer upon the county courts power to supervise the action of other tribunals in all matters relating to roads, but it conferred exclusive jurisdiction in the county courts in all matters relating to roads. They evidently meant by the exercise of jurisdiction that the county court should act in the matter, and did not intend that exclusive jurisdiction to act should be given to another body or tribunal, and that the mere supervision over that body should be left to the county court. There is a marked difference between jurisdiction over a matter and supervision over the same matter. Jurisdiction confers the power to act, and supervision the power to inspect or approve merely. The difference is vital.
Where the county courts have exclusive jurisdiction in matters relating to roads, the public roads of a county would be laid out, vacated, improved and maintained by one tribunal. The whole system would be under one head. That the people understood this to be the meaning •of the Constitution is shown by them adopting an amendment to the Constitution giving the county courts of the State, together with the majority of the justices of the peace, in addition to the amount of county taxes allowed to be levied, the power to levy not exceeding three mills on a dollar on all taxable property to be known as the county road tax and to be used for the purpose of making and repairing public roads and bridges..
A county road is devoted to the public use and may be used by the general public as well as by the adjacent landowners. Indeed, it is a matter of common knowledge that roads are used for the purpose of hauling freight by persons who own no land, and that such use is more injurious to the roads than the use of them by the landowners in carrying their products to the nearest market town. Hence the necessity of placing the jurisdiction over all matters relating to roads in one body or tribunal, to the end that the public interest should be best served, is apparent.
The evils of placing the jurisdiction over public roads in different tribunals or bodies are manifest. Interested parties may organize road improvement districts and impose the expense thereof upon the adjoining landowners. It is comparatively easy to organize such improvement districts ostensibly for the special benefits to be derived by the landholders from the enhanced value to their lands, when in reality the purpose of the organization is for the gain of the promoters, and the local taxes imposed, in many instances, amount to practical confiscation of the landowners’ property. To illustrate: A promoter may organize a road improvement district and put lands in it situated miles away from the road, knowing that the traffic from the lands will never go over the road, and a special tax is thus levied upon the lands upon the theory that the lands will he ultimately enhanced in value by the proposed improvement. Again and again the same lands may be placed in road improvement districts where the roads are miles away from the lands and do not afford any passageway to and from them to the lands. The sum total of these special taxes will eventually amount to so much that they will be very burdensome.
It will be remembered that each improvement district may be organized by different people, and that no regard for the relation between the proposed improvement ( will be considered. Even if they were considered apii , projected at the same time, the divergent views of honest promoters and the selfish views of dishonest ones would place local taxes upon the lands which would be very burdensome to the owners.
Finally it may come to pass that the road next to the landowner’s farm, and which he uses to market his produce, will 'be made the subject of an improvement district. By that time the owner has reached almost the limit of his endurance in paying the special taxes; and, as the improvements may all he separate improvements, there is no provision for adjusting the assessments between the several separate districts and the landowners. Indeed, vested rights have sprung up in the meantime which would prevent this. Therefore, the landowner of small means must of necessity sacrifice his land and move away to another place where the taxes are less burdensome. Of course, it is well settled in law that a local improvement is one that shall benefit the property on which the cost is assessed in a manner local in its nature, and that such assessments should be limited to the amount of henefits received. The question of benefits has been construed to be so much a matter of opinion that a local improvement system of constructing, improving and maintaining roads in this State has proved exceedingly burdensome to property owners and in numerous instances has reached a point well nigh to confiscation. In such cases the property is sold to pay special taxes and will be purchased by speculators at a price which amounts to no more than the special taxes imposed and the costs and penalties which have accrued. As has been said by an eminent judge, “The victim of this'vicious system of taxation will be left houseless and homeless, with the miserable consolation that, although without home or shelter, he is rich in supposed benefits, which never were and never could have been reasonably expected to be realized.”
Our present Constitution was written at a time when extravagant taxation was prevalent in the State, and doubtless the framers of it had in mind to prevent a system so readily open to abuses when they declared that the county courts should have exclusive original jurisdiction in all matters relating to roads. This was an express and unequivocal mandate of the people that only one tribunal should exercise jurisdiction over the public roads. It was not intended that other bodies with divergent minds should actively exercise the jurisdiction, and that the county courts should only have supervision over their actions.
The present system has destroyed the freedom of action guaranteed the county courts under the Constitution. The whole system is opposed to every principle of equitable apportionment of taxes and has been well said in many instances “to be arbitrary exaction in its most odious form.”
Therefore we respectfully dissent.