(dissenting). What was said in the dissenting- opinion in the case of House v. Road Improvement Dist. No. 2 of Conway County, ante, p. 330, applies with equal force to the facts presented by the record in this case, and need not be repeated here.
There is another phase of this case which, in. our judgment, requires us to voice our dissent in writing. In this case the majority of the court has announced the rule to be that it is only when it appears from the face of the act creating an improvement district, or other facts of which the court may take judicial knowledge, that the 'Courts will review the action of the Legislature in arbitrarily including lands in such districts.' It is true that in the cases cited in the majority opinion it appeared from the face of the act that they were arbitrary and discriminatory, and the court so stated in the opinion. This was but the statement of a fact as it appeared from the record, and by no means constituted, or was intended to constitute, a holding that the courts' would not review the action of the Legislature in establishing an improvement district, however arbitrary it might be, unless that fact was shown on the face of the statute itself, or by facts of which the court would take judicial knowledge. In cases of this sort the courts are not concerned about the method of proof. They are only concerned about whether -the proof has been made by satisfactory and competent evidence. The general rule .is that when, owing to peculiar or extraordinary facts established by satisfactory and competent evidence, the usual presumption in favor of the legislative act has. been overcome, the courts will interfere to prevent an illegal exaction from the landowner and a virtual confiscation of his property. If the Legislature has no power to arbitrarily include the land in an improvement district, the courts should interfere and grant relief when that fact is shown by any competent and satisfactory evidence.
It would seem that the majority opinion, by necessary implication, overrules the salutary principles of law announced in Louisiana & Ark. Ry. Co. v. State, 85 Ark. 12. In that case the court held that a legislative determination that a station should be erected and maintained at a certain point is conclusive, unless the courts can declare, as a matter of law, that such determination is arbitrary and unreasonable. In that case, proof was offered and rejected in the court below that there was no public necessity for the station and that the requirements of the legislation were so arbitrary and unreasonable as to demand a judicial review of the question. The court held that the rejected evidence was competent, and that for the court to refuse a consideration of it would be to deny the railroad company the equal protection of the law, and would, in effect, be depriving it of its -property without due process of law. ' In discussing the question the court referred to the fact that the Legislature has the power to determine for itself the boundaries of a local improvement district, but that the court had held that the power, when arbitrarily and unreasonably exercised, is not beyond judicial control.
The court approved the doctrine stated by the Supreme Court of the United States in Norwood v. Baker, 172 U. S. 269: “But the power of the Legislature in these matters is not unrestricted. There is a point beyond which the legislative department, even when exerting the power of taxation, may not go inconsistently with the citizen’s right of property.” The court said that this principle was applicable in the station ease. Continuing, the court said that it is a question primarily for legislative determination, and that determination should not be disturbed by the court unless the power has been exercised without reason. We see no reason why the arbitrary action of the Legislature might not be shown by any competent proof in that case, and should be limited to facts of which the court might take judicial knowledge in the present case. It may not be impertinent to add that no reason is attempted to be given for such limitation in the majority opinion.
The principle upon which the arbitrary action of the legislature in matters of taxation and special assessment may be reviewed by the court is well stated in Stuart v. Palmer, 74 N. Y. 183. In discussing the subject Judge Earl, speaking for the court, said: “The Legislature can no more arbitrarily impose an assessment for which property may be taken and sold, than it can render a judgment against a person without a hearing. It is a rule founded on the first principles of natural justice, older than written constitutions, that a citizen shall not be deprived of his life, liberty or- property without an opportunity to be heard in defense of his rights, and the constitutional provision that no person shall be deprived of these ‘without due process of law’ has its foundation in this rule. This provision is the most important guaranty of personal rights .to be found in the Federal or State Constitution. It is a limitation upon arbitrary power, and is a guaranty against arbitrary legislation. No citizen shall arbitrarily be deprived of his life, liberty, or property. This the Legislature cannot do or authorize to be done. ‘Due process of law” is not confined to judicial proceedings, but extends to every case which may deprive a citizen of life, liberty, or property, whether the proceeding be judicial, administrative, or executive in its nature. (Weimer v. Brueinbury, 30 Mich. 201). This great guaranty is always and everywhere present to protect the citizen against arbitrary interference with these sacred rights.”
With reference to the facts showing the arbitrary action of the Legislature, but little need be said. The undisputed facts show that the lands of appellant are separated from direct connection with the proposed road by lakes 'and brakes which are impassable. The evidence shows that it would not be practical to construct bridges ever this impassable way, and the only practical route for appellant to use the improved road is to leave her land and go upon adjoining lands in order to reach the road.
This brings the ease directly within the rule announced in Ruddell v. Rutherford, 145 Ark. 49, and other cases of like character.
We concede the general rule to be that, if the Legislature has fixed the boundaries of the district and laid the special tax or provided for a subordinate agency to do so, its action must, in general, be deemed conclusive. To invoke the intervention of a court against the result of its conclusion is to invoke judicial authority to give its judgment controlling effect over that of the Legislature in a matter of the apportionment of a special tax, and this can only be done where the legislative action is manifestly colorable and arbitrary. This is the basis of our holding in Ruddell v. Ruthford, supra.
In that case the Legislature eliminated section 18, and thereby determined that it was not benefited by the improvement. It included section 19 in the district, thereby concluding that it was benefited. It appeared, from a map introduced in evidence, that it was impractical to go from section 19 to that part of the district where the improved road was without passing through section 18-, Hence the statute was held to be arbitrary and discriminatory on its face.
The court was not concerned about the method of proof. Because the act on its face was discriminatory was not the fact which gave the court jurisdiction; The arbitrary and discriminatory action of the Legislature was what made the exception to the general rule and gave the court jurisdiction in the premises. This is illustrated by the case of Little Rock v. Katzenstein, 52 Ark. 107.
In that case the court held that the action of the city council in including property in an improvement district is conclusive of the fact that it is adjoining the locality to be affected, except when attacked for fraud or demonstrable mistake.
The court used the expression, a demonstrable mistake of fact, meaning, by this expression, a mistake of fact as to the existence of which there was no room for doubt. If no such limits exist, the power of local assessments would be but another means for arbitrary exaction, and in such cases the wrong must always be open to correction.
We also dissent from that paid of the opinion which holds that the action of the Legislature in fixing the boundaries of the district was not arbitrary. . We concede that the members of the Legislature are presumed to have, a general knowledge of the geography as well as the topography of the State. They are supposed to act upon this general knowledge and upon information furnished by the committees and other agencies selected by it. All'these are evidences upon which the Legislature acts. But here again there, is a well-known exception to the general rule, and that is that the Legislature can not act in an arbitrary or discriminatory manner in fixing the boundaries of a district.
In concluding the discussion, on this branch of the case, the majority opinion gravely adds that this court is firmly committed to the doctrine that improved roads must necessarily have termini and improvement districts boundaries. This is so in the very nature of tilings, but it does not follow that the Legislature can act arbitrarily in fixing the boundaries without its action being reviewed by the courts. There, as here, the testimony is all one way, and shows that the Legislature acted arbitrarily and in a discriminatory manner in fixing the boundaries of the district. The court should declare, as a matter of law, that the creation of the district was invalid and any assessments levied under it an illegal exaction. To hold otherwise is to deprive the landowner of his property without redress.
Justice Wood concurs in the views here stated.