Ahern v. Board of Improvement District No. 3 of Texarkana

• Decision Date: 09 February 1901
• Citation: 61 S.W. 575,69 Ark. 68
• Parties: AHERN v. BOARD OF IMPROVEMENT DISTRICT NO. 3 OF TEXARKANA
• Court: Arkansas Supreme Court

61 S.W. 575

69 Ark. 68

AHERN v. BOARD OF IMPROVEMENT DISTRICT NO. 3 OF TEXARKANA

Supreme Court of Arkansas

February 9, 1901

Appeal from Miller Circuit Court, JOEL D. CONWAY, Judge.

Decree affirmed.

Oscar D. Scott, for appellants.

The requirement of Sand. & H. Dig. § 5337, requiring the court to obtain and use a copy of the last assessment of the property, was mandatory. 30 Ark. 609, 612; Cf. 14 Am. & Eng Enc. Law, 249; 67 Ark. 30; 40 Cal. 255; 50 N.Y. 502. The proper assessment list was conclusive evidence of the values of the property when the council came to decide whether the petition was signed by a majority in value of the property holders. Sand. & H. Dig. § 5367; 45 Ark. 400. The assessment was not "ad valorem and uniform" as required by art. xix, § 27 of the constitution. While by art xxi, § 5 of the constitution, church property is exempt from general taxation, it is not exempt from local improvement assessments. Cooley, Taxa. 146; 2 Dill. Mun Corp. § 777; 2 Desty, Taxa. p. 248; 11 Johns. 80; 1 Harr. 104; 8 Bush, 508; 116 Mass. 181; 6 R. I. 235; 7 Md 517; 24 Mo. 20; 2 Ore. 155; 86 Ill. 336; 36 Ind. 338; 42 Oh. St. 128; 35 N.J. 157; 4 La.Ann. 1; 84 N.Y. 121; 22 Pa.St. 496. "Taxes," as spoken of in the constitution, tion, are general taxes, and do not include local assessments. 21 Ark. 40; 65 Ark. 496. The assessment was void for want of uniformity. 10 Am. & Eng. Enc. Law, 296; 48 Ark. 251; 32 Ark. 31; 21 Ark. 31; 21 Am. Rep. 677; S. C. 51 Cal. 15; 48 Ark. 383. The street railway track, gas and water mains, etc., were taxable as real estate, and should have been included. 2 Dill. Mun. Corp. § 789; 44 N.E. 375; 52 N.E. 501; 46 N.E. 437; 50 Ga. 620; 38 Conn. 422; 45 Oh. St. 98; 32 Cal. 412. The assessment was not ad valorem. 9 Heisk. 349; 34 Ill. 203; 42 Ark. 152, 162; 172 U.S. 269. A frontage or area assessment would not be permitted. 14th Amend. Const. U.S.; 172 U.S. 269; 91 F. 37; 94 F. 361; 100 F. 538. It was error to assess homestead property. 31 S.W. 52; cf. 61 Ark. 26; 55 Ark. 369; 47 Ark. 445.

Williams & Arnold and J. D. Cook, for appellees.

Extraneous evidence of values was admissible. 50 Ark. 116. If the assessment of any one's property was too large, he should have made a tender of the proper amount. 92 U.S. 575, 617; Cooley, Taxa. 537, 538, 541; 24 Ark. 459. The rule in Texas as to exemption of homesteads is peculiar to that state, and grows out of its peculiar constitutional provisions. Const. Texas, art. 16, § 50. The homesteads were properly included. The gas and water mains were not liable to this assessment, for the reason that there would accrue to them no benefit corresponding to the amount which they would have to pay, if any at all. 172 U.S. 269; 52 Ark. 107; 55 S.W. 955.

BUNN, C. J. HUGHES and WOOD, JJ., concurred in the opinion of RIDDICK, J.

OPINION

BUNN, C. J.

This is a suit in equity, under the statute, brought to foreclose assessment liens, and enforce the collection of the delinquent assessments against certain owners of real estate in the district. The chancellor decree for plaintiffs on the complaint, answer, and testimony in the case, and defendants appealed.

In May, 1899, upon the petition of ten resident owners of real property in the proposed district, the city council of the city of Texarkana, in this state, organized said Improvement District No. 3, and within the time required by law the clerk of the said city council caused the organization ordinance to be published as required by law, and due proof was made of the same. Within three months from the publication of said ordinance, to-wit, on the 8th day of August, 1899, what purported to be a majority in value of the real property owners in the district filed their petition before the council, under section 5324 of Sand. & H. Dig., and the city council on the same day passed an ordinance as provided in said section. At the same time the council appointed commissioners to assess the benefits to accrue to the real property in the district by reason of the contemplated improvements under the act approved May 8, 1899, amendatory of sections 5333, 5334 and 5335 of Sand. & H. Dig., who afterwards reported such assessment. A board of improvement was at the same time appointed under section 5324, and this board proceeded to form plans for the improvement, and to do other things required by section 5329.

The principal objection--an objection which includes several others numbered in the abstracts and briefs in the case--is that a majority in value of real property owners in the district did not really sign the petition required by section 5324. To specify the irregularities covered by this objection, the defendants say: First, that all the real property in the district was not included in the ordinance passed on the petition; and, secondly, that much of the property going to make up the majority in value was signed for by persons not competent to do so. The petition was on the valuation made by the county assessor, as appeared from his assessment list, made in 1897, for the taxes of 1898 and 1899, which was at the time the last list on file in the clerk's office. The real fact is that the county assessor had made his assessment for the taxes of 1900 and 1901 in July, the month before, but the same had not been returned and caused to be filed in the county clerk's office at the time the petition was filed, and, of course, not when the same was signed by the petitioners, and was not filed until in September following. This state of things has created some confusion in the record.

The defendants contend that, in order to ascertain the majority in value of the property in the district, all the assessable property should have been included, and that all of said property was not included--for instance, the real property of churches, which they show to have been of the value of $ 2,800. Church property is exempt from general taxation, and therefore does not appear as valued on the county assessor's list. By a decided weight of authority, however, although exempt from general taxes, church property is liable for local improvement assessments. The contention of the defendants is therefore sustained, and in such case extraneous proof of value is properly made. For a similar reason, the plaintiffs contend that improvements made upon real property in the district since the last county assessment, and before the filing of the petition, ought to be included; and they allege and show that such improvements had been made within said time, upon the property of the signers of said petition, of the value of $ 24,650. Under this head the defendants allege that there was a Spur track of the St. Louis, Iron Mountain and Southern Railway Company, which ran on one of the streets in the district for a distance of 1,000 feet, and that the track and right of way of the said railroad was valued by the state board of assessors at the rate of $ 2,000 per mile. It is not shown by what title or tenure this right of way was held by the railroad company, whether by lease, easement or license; and we therefore cannot say that it is real property of the company, as owner, in the purview of the law, nor whether or not it is assessable as such. The statement as to the assessment by state railroad board throws no light on the question, as we cannot ascertain from it that this spur track was included in that assessment, or was intended to be included; and finally it is not shown that this property would be benefited by the contemplated improvements.

The same and more may be said as to the contention in favor of including the underground right of way along the street of the water pipes of the water works company, and the easement in the ground in which the poles of the Postal Telegraph and Electric Light Companies are set up, and the right of way of the overhead wires, all of which seems to have been assessed on the county assessment as personal property at the power house outside the district. These were properly excluded, under the showing made.

Public property is not assessable, and was properly excluded.

The valuation of the real property in the district according to the county assessor's books, was as follows:

For 1898

$ 570,310

Add to this the church property

2,800

Improvements

24,650

Total

597,760

Majority

2 98,880

For 1899

$ 606,607

Church Property

2,800

Total

609,407

Majority

304,703 1/2

In the matter of the property of J. F. Smith's estate, signed for by the executor, W. A. Williams: In Rector v. Board of Improvement, 50 Ark. 116, 6 S.W. 519 this court held that an administrator is not competent to sign such a petition, so as to bind the heirs. A majority of the judges cannot see any distinction between the power of an administrator and an executor, although clothed with a power of sale as was the executor in this case. This property was valued at $ 6,600, for $ 1898 and $ 6,600 for 1899, and should be deducted from the petitioners' list.

The property of the estate of G. W. Tyson was signed for by his widow. The statute does not confer this right upon a tenant for life, and she is not the owner, in contemplation of the statute, except as a life tenant. Mayor, etc., of Baltimore v. Boyd, 64 Md. 10, 20 A. 1028. This property was valued at $ 4,500, both for 1898 and 1899, and should be deducted from the petitioners' list.

In the matter of the property of S. M. and J. O. Hardin, valued at $ 1,200 in both assessments, and only signed for by one of them, one-half should be deducted from the petitioners' list--it appearing that they were tenants in common--leaving $ 600.

The same may be said as to the property of G. J. and F. M Hollis, valued at $ 650 in both years, leaving $ 325 to be deducted. The $ 800...