Rector v. Board of Imp.

• Decision Date: 24 December 1887
• Parties: RECTOR v. BOARD OF IMPROVEMENT
• Court: Arkansas Supreme Court

6 S.W. 519

50 Ark. 116

RECTOR v. BOARD OF IMPROVEMENT

Supreme Court of Arkansas

December 24, 1887

APPEAL from Garland Circuit Court in Chancery, J. B. WOOD, Judge.

Decree reversed.

Sam. W Williams and F. W. Compton, for appellants.

1. The district was illegally formed, leaving out important territory which had to be drained, and necessary outlets. The commissioners exceeded their powers in building more sewerage than they had a right to build, and the constitutional rights of appellant will be impaired if they are compelled to contribute to the erection of improvements outside the district, whereby their property will be taken for public use without just compensation. Mansf. Dig., sec. 826; Art. II sec. 22, and Art. XIX. sec. 27 Const.; Burroughs on Tax secs. 32, 33; 16 Mich. 269; 65 Penn., 146; 69 Id., 353; Cooley Tax., Ch. 20, 606, 607; Welty on Assess., Ch. 22, 250 et seq., sec. 575 and notes; 1 Southern Rep., 873.

2. Two of the commissioners were not residents of the district. Cooley Tax., p., 656; 29 Me. 531; 1 Denio, 647; Burrough Tax., sec. 148; 3 Bush, 416, 423; 17 Wisc., 442; 46 N.Y. 178; Cooley Tax., p. 257-8-9; 1 Dillon; 267; 51 Me. 599; 21 Wend 178; 11 N.Y. 563; 3 N.Y. 396; 47 Cal. 361; 2 Johns. Cases, 346.

3. A majority of the owners of property, in value, in the district did not sign the petition. This was jurisdictional. Howard could not sign for the Hot Springs Land Co., in which he was only a stockholder. 59 Cal. 206; Cooley Taxation, p. 657 and notes; 53 N.Y. 128; Henderson v. Baltimore, 8 Md.

Administrators are not owners. 59 Cal. 206; Art. XIX, sec. 27, Const.; Burroughs Tax., sec. 149. Without a majority the action of the council was void. 8 Md. 352; 18 Id., 276; 36 Ind. 90; 36 N. J. L., 49; 69 Pa. 365; Burroughs Tax, p. 477.

4. There was no estoppel by conduct. Bigelow on Estoppel, p. 519; 36 Ark. 96; 11 Conn. 251; 43 N.Y. 120; Bisp. Eq., sec. 288.

Additional brief by F. W. Compton and Sam W. Williams, for appellants.

1. The city council appointed as members of the board of improvement two persons, Gaines and Sumpter, who were not residents of the district, when the statute expressly required that they should be. Mansf. Dig., secs. 828, 830. This provision of the statute, being for the benefit and protection of the tax payer, is mandatory, and the violation of it by the city council rendered the assessment illegal and void. The People v. Board of Education, 1 Denio, 647; Speer v. Robinson, 29 Maine, 531; Hare v. Carnall, 39 Ark. 196; Payson v. Hall, 30 Maine, 319, 325; Dresden v. Gould, 75 Maine, 298; Hews v. Reis, 40 Cal. 255; French v. Edwards, 13 Wall. 506.

2. The assessment sought to be enforced is not based on, nor in accordance with, the plan and estimate made and reported by the board for the construction of the sewer, and is therefore void. See Mansf. Dig., secs. 834, 836, 837, 838, 868; Myrick v. City of LaCross, 17 Wis. 4426; Matter of Protestant Episcopal School, 46 N.Y. 178; Minn. Linseed Oil Co. v. Palmer, 20 Minn. 468; Brown v. Mayor &c., 128 Mass. 282. The sewer was estimated by the board to cost $ 9,600, and when finished actually cost only $ 8,375; but the city council, instead of levying $ 9,600 as they should have done, (because the petitioners had asked for no improvement except the construction of a sewer), proceeded to levy and did levy the sum of $ 22,200 as a tax on the real estate in the district for improvements of another character for which the property owners had never petitioned, and for which they never in any way consented to be taxed. The excess over $ 9,600 not being consented to by a majority in value, or even by any one of the owners, was plainly illegal and vitiated the entire assessment. See the petition of the property owners, the estimate of the board, and the ordinance assessing the tax, all for the construction of a sewer and nothing else.

3. If extending the sewer main two miles outside the district was necessary--and we contend it was not--the fact was as well known when the district was established as ever afterwards; and the district should have embraced the whole city, as the engineer, French, in his deposition says it should have done. The district was improperly established, no matter whether designedly or not; and any taxation on the small district carved out for such extension of the sewer main would be to tax the owners of property in the district for general purposes under the pretext of local taxation for the benefit of their property which the law does not permit. See Burrough on Taxation, secs. 32, 33; Ryerson v. Utley, 16 Mich. 269; Hammet v. Philadelphia, 65 Pa. 146; Washington Avenue Case, 69 Pa. 353 ; Brown v. Mayor, &c., supra.

4. The appellants are not estopped to resist the collection of the tax. Bigelow on Estoppel, p., 519; Loudon v. Litchfield, 11 Conn. 251; Cruger v. Dougherty, 43 N.Y. 120.

G. W. Murphy, for appellee.

It is contended on the part of the appellants that the district was improperly formed, that the petition for the assessment was not signed by a majority of the owners of real property therein, and that there was a disagreement between the estimate furnished and the petition therefor, the petition being for sewers and the estimates for that and other matters.

The territory to be embraced in the district was within the judgment of the council, and the limits are in accordance with the petition. The petition for the improvement was adjudged to be the sentiment of a majority of the owners of real property by the circuit judge, and the estimate for surface drainage was necessary to the construction of a complete sewer system; the macadamizing, which was foreign, was left out in the estimates.

Passing from these matters, it was the intent of the Legislature to require the parties aggrieved to object by suing within twenty days, and this law was well directed. It was known that the making of improvements, especially of this character, would often be urgently demanded, and that delay could not be tolerated; hence, it was provided that the revenue contemplated by the assessment might be hypothecated for the purpose of borrowing money to hasten the improvement. Twenty days was ample time for the parties whose property was to be benefited, to object, and if they did not do so, it was not unreasonable to conclude that they favored the proceeding.

Passing, however, from all questions as to the validity of the ordinance the appellants are estopped from questioning or resisting the collection of the tax imposed. Outside of Rector, the appellants signed the petition and paid the first installment; Rector, by his pleading and evidence shows that he had full knowledge of the defects the ordinance contained, and that with this knowledge he paid the first installment and remained silent until the contemplated revenues had been hypothecated, money borrowed and the sewer constructed; he cannot now, after receiving the benefits contemplated, be allowed to say that there was any impropriety or any illegality in the proceeding.

He knew that his property was being benefited by the sewer and he was willing to accept the benefit, and from his silence during the first year following the special assessment, we are justified in concluding that he would have remained silent until all installments were paid, had not the sewer been built earlier on borrowed money.

Under the reasoning in Motz v. Cty of Detroit, and Tones Executors v. City of Columbus, the former at page 495 of 18 Mich. Rep., and the latter at page 644 of American and English Corporation Cases, the appellants are estopped from questioning the legality of the ordinance. It is true that Rector did not sign the petition, but he paid the first installment, knew that the improvements were being made, and even knew that the money would be borrowed on the faith of the assessment.

OPINION

BATTLE, J.

Ten resident owners of real property in the city of Hot Springs petitioned and requested the city council to lay off a certain portion of Hot Springs, in which they resided and had property, into an improvement district for the purpose of grading and otherwise improving the streets and alleys therein, and constructing sidewalks and sewers; and the council, by ordinance, did so, and designated the district so laid off as "Improvement District No. 1." A short time thereafter many owners of real property within such district presented to the council a petition praying that "a general sewer be constructed through the district from north to south," and that the costs thereof be assessed and charged upon the real estate therein. The city council, thereupon, appointed three citizens of Hot Springs a board of improvement. The members of the board so appointed qualified and entered upon the discharge of their duties and procured estimates of the probable cost of constructing the sewer, which was $ 9,600. The cost of other improvements in the district not named in the petition, such as surfacing and shaping streets, well holes, and drain pipes connecting with the Hot Springs creek street gutters, curb stones, and macadamizing streets, were estimated at $ 17,100. After this, on the 22d of May, 1885, the city council passed an ordinance, in which they recited that a majority in value of persons owning real property in the district had petitioned the council for the construction of sewers and asked that the cost thereof should be assessed and charged upon such property, and recited that the estimated cost of such sewers was $ 22,200, which was three and one-half per centum of the assessed value of such property, according to its value as shown by the last county assessment on file in the office of the county clerk; and therein provided that said assessment should be levied and...