Board of Improvement District No. 5 v. Offenhauser

• Decision Date: 04 November 1907
• Citation: 105 S.W. 265
• Parties: BOARD OF IMPROVEMENT DISTRICT NO. 5 OF TEXARKANA v. OFFENHAUSER.
• Court: Arkansas Supreme Court

105 S.W. 265

BOARD OF IMPROVEMENT DISTRICT NO. 5 OF TEXARKANA v. OFFENHAUSER.

Supreme Court of Arkansas.

November 4, 1907.

Appeal from Miller Chancery Court; Jas. D. Shaver, Chancellor.

Suit by the board of improvement district No. 5 of Texarkana against A. J. Offenhauser and others. From a decree dismissing the complaint, plaintiff appeals. Reversed and remanded.

Frank S. Quinn, for appellant. Pratt P. Bacon, for appellee.

McCULLOCH, J.

This is a suit in chancery instituted by the board of improvement of improvement district No. 5 of the city of Texarkana against the owners of certain real property in the district to enforce the collection of special assessments levied thereon. The property owners defended against the assessments on the several grounds discussed herein, and the court rendered a final decree in their favor dismissing the complaint for want of equity, from which decree the plaintiff prosecuted this appeal.

1. It is first contended by the appellees that the petition to the city council praying that the improvement be made was not signed by a majority in value of the owners of real property in the district, and that, for this reason, the assessments sought to be enforced are illegal and void. In considering this phase of the case, it is important to inquire in the beginning where the burden of proof lies, whether upon the board of improvement or upon those who attack the validity of the assessments. It has never been decided by this court where the burden lies in a case of this kind to show whether or not the petition for the improvement was signed by a majority of the owners of property affected. The court has decided, however, that the burden was upon those attacking the validity of assessments to show that the city ordinance levying the same was not duly passed, and in the opinion of the court, after referring to the section of the statute (Kirby's Dig. §§ 5691, 5692) providing that in a suit instituted by the board of improvement to enforce payment of assessments it shall not be necessary to state more than the fact of assessment and nonpayment thereof, nor to exhibit with the complaint any copy of ordinance or other document or paper connected with the assessment, etc., said that it is manifest that the Legislature intended "to make the few allegations of the complaint a prima facie case; that is, if not controverted in the pleading and by proof, to be sufficient to authorize the decree of condemnation and foreclosure." K. C., P. G. Ry. Co. v. Waterworks Imp. Dist., 68 Ark. 376, 59 S. W. 248. The court has held in levee district and drainage district cases that regularity of the proceedings in forming the districts and in levying assessments will be presumed in absence of evidence to the contrary. Stiewel v. Fencing Dist., 71 Ark. 17, 70 S. W. 308, 71 S. W. 247; Ritter v. Drainage Dist., 78 Ark. 580, 94 S. W. 711; Overstreet v. Levee Dist., 80 Ark. 462, 97 S. W. 676; Railroad v. St. Francis Levee Dist., 80 Ark. 316, 97 S. W. 281; Driver v. Moore (Ark.) 98 S. W. 734. We think these cases fully establish the principle that the burden, in a controversy of this kind, is on the attacking party to show that the assessments have not been legally levied. Now, keeping in mind the rule casting upon appellees the burden of showing that the petition for the improvement did not contain a majority in value of the real property in the district, let us see how they have borne the burden. The certificate of the county clerk shows that according to the last preceding assessment of the county assessor on file the real property in the district was valued at $145,310. To this add the value, as shown by the agreed statement of fact, of church property omitted from the county assessor's list, $2,000; total, $147,310; one-half, $73,665. It is agreed that the signatures to the petition represent the sum of $83,790 in value of said property, but appellees attempt by other testimony to show that this amount should be reduced. They introduce the county clerk, who testifies that he had examined the deed records, and found no conveyance of real property in the district to certain parties whose names appear on the petition, but that did not prove that the parties did not own land in the district. Registry of a deed is not necessary to pass title to the property described therein, except as against subsequent purchaser without notice of the conveyance. It is also shown that the names of three married women who owned property in the district, of the assessed value of $2,300, were signed to the petition by their respective husbands. There was further proof, however, that they ratified the signatures. This was sufficient to constitute them signers of the petition. H. V. Earnest, who signed the petition, owned a lot valued at $400, but a few weeks before the filing of the petition with the city council had entered into an oral agreement for the sale of the lot to G. G. Pope. The agreement for sale was on condition that the purchaser should approve the title, and no deed was executed nor possession given nor any part of the price paid until after the petition had been filed and acted on by the city council. Earnest was the owner at the time the petition was filed, and he had the right to sign for the property. Another name appearing on the petition is sought to be excluded because it was signed by the agent and attorney of the owner. It is contended that the signature was not valid because the power of attorney was not in writing and recorded. The burden was on appellees to show that the names of the property owners were not signed by authority. A petition of this kind is not a conveyance of real property or a writing which affects real estate, within the meaning of the statute (Kirby's Dig. § 753), requiring letters of attorney containing power to execute such an instrument be "acknowledged or proven and certified and recorded with any deed that such agent or attorney shall make."

It is agreed that real property of the aggregate value of $27,330 constituted the homesteads of the several owners who were married men, and that the respective wives of said owners did not sign the petition for improvement. This, it is contended by counsel for appellees, rendered the signatures of the owners of the several homesteads ineffectual for the purpose of counting this property on the petition. The petition is not an instrument which falls within the meaning of the homestead statute (Kirby's Dig. § 3901), requiring the wife's signature and acknowledgment. The Constitution and statute only require that a petition for improvement shall express the consent of the owners of real property in the district. The wife of the owner of a homestead is not the owner in this sense.

2. Certain other signatures to the petition are challenged on other grounds; but, as the exclusion of the property those persons are purported to represent will not affect the question under consideration, it is not important to discuss the points on which these signatures are sought to be excluded. It can therefore be seen that the petition contained the signatures of a majority in value of the owners of real property in the district, according to the assessment on file in the county clerk's office, and after adding to the assessment the value of church property not assessed. The agreed statement of facts recites that the board of assessors for the improvement district added to the assessment list (of the assessor) "all new buildings and other improvements then being made upon said real property, and which was not contained in the county assessments, which new buildings they valued and assessed at $5,500." Counsel for appellees say that this amount should be added to the assessment in determining whether or not the petition contains a majority in value of the property owners. Even if we add that sum, it would not increase the aggregate value of property in the district so much that the petition would not contain the signatures of a majority. This would increase the total assessment of value to $152,860, and the petition contains the signatures of property owners representing in value $83,790. Moreover, the statement of facts does not show that these additional improvements and buildings, the value of which was assessed by the board, were added to the property when the petition was presented to the city council. The value of the property according to the last assessment of it at the time of presentation of the petition must be considered in determining whether or not the petition contains a majority of the property owned. Improvements made thereafter cannot be considered. We do not deem it necessary to decide in this case whether or not the last assessment made by the county assessor must be accepted as conclusive evidence of the value of real property in the district, or whether it is only prima facie evidence of such value, and that the true value may be shown by other evidence. Inasmuch as we find under the proof and agreed statement of facts in this case the petition does contain a majority of the owners in value of the property, we refrain from expressing an opinion on the question just mentioned.

3. The next defense is that the assessments are void because the cost of the improvement exceeded 20 per centum of the assessed value of real property within the district. The agreed statement of facts recites that the value of real property in the district according to the assessment made by the county assessor as certified by the county clerk from the last assessment lists on file in his office was $145,310, and that the board of improvement of the district reported to the city council that the estimated cost of the improvement would be $29,890. It is also shown that the board of...