Board of Improvement of Sewer Improvement District No. 1 of Fayetteville v. Pollard

• Decision Date: 27 March 1911
• Citation: 136 S.W. 957,98 Ark. 543
• Parties: BOARD OF IMPROVEMENT OF SEWER IMPROVEMENT DISTRICT NO. 1 OF FAYETTEVILLE v. POLLARD
• Court: Arkansas Supreme Court

136 S.W. 957

98 Ark. 543

BOARD OF IMPROVEMENT OF SEWER IMPROVEMENT DISTRICT NO. 1 OF FAYETTEVILLE v. POLLARD

Supreme Court of Arkansas

March 27, 1911

Appeal from Washington Chancery Court; T. H. Humphreys, Chancellor reversed.

Decree reversed and cause remanded.

McDaniel & Dinsmore, for appellant.

1. The allegation in the complaint of the assessment and nonpayment of this local tax was all that was required of the plaintiff to make a prima facie case. Kirby's Dig. § 5691.

2. The statute is not in conflict with § 22, art. 2 Constitution of Arkansas, for § 23 of that article and § 27, art. 19, confer authority for such legislation. 42 Ark. 152; 69 Ark. 68; 59 Ark. 513. Ample opportunity is given to parties aggrieved to appeal to the city council and the courts to protect their rights. This is "due process of law." Hence our law does not violate the Fourteenth Amendment. 140 U.S. 316; 42 Ark. 152.

3. No authority is conferred upon the board to make a new or second assessment. Kirby's Digest, § 5677; 86 Ark. 1.

4. No fact or circumstance of fraud or "demonstrable mistake" is shown. A general charge of fraud or mistake is bad on demurrer. 17 Ark. 445; Ib. 603; 34 Id 169; 35 Id. 555. No lack of benefits is shown. 21 Ark. 60; 59 Ark. 513.

If the district is legally formed, the assessment cannot be defeated by showing no special or peculiar benefits. 84 Ark. 257; 90 Ark. 38, 39; 81 Ark. 217. Mere errors of judgment cannot be corrected by the courts. Cases supra.

LeRoy A. Palmer and A. B. Stone, for appellees.

1. The assessment was the result of fraud and demonstrable mistake. Whether or not property is benefited specially is a question of fact. 25 Ark. 39. The listing of lands for taxation raises a presumption of benefits, but this presumption may be rebutted. 21 Ark. 60. The assessment fails if it is shown that the land is not benefited.

2. The question of a second assessment is not involved in this case.

3. A second survey cannot make good the lack of benefits in the original plan. 50 Ark. 129. There can be no assessment for cost of sewers, etc., on property too remote to confer benefits 158 Ill. 280; 56 N.E. 1096; 23 Barb. 166; 33 Kan 156; 5 P. 781; 11 Neb. 37; 140 Ill. 440; 163 Ill. 505; 177 Id. 459; 178 Id. 499. Nor can the possibility of pretended benefits to accrue in the future render property liable. 132 Ill. 100; 140 Id. 440; 147 Id. 327; 45 Kan. 312; 11 Neb. 37; 179 Penn. St. 490; 36 A. 209; 48 N.E. 155; 53 N.J.L. 330; 21 A. 453; 37 N.J.L. 330; 60 Id. 168; 37 A. 737; 46 N.Y. 178; 84 N.Y. 108; 44 Kan. 137; 24 P. 64. Assessments beyond actual benefits are void. Brown on Fourteenth Amendment, 158, 165; 172 U.S. 269; 92 Texas 685; 154 Ind. 467; 64 Ga. 783; 35 Mich. 155.

4. Where an assessment is made arbitrarily, capriciously and not in the exercise of a fair, unprejudiced judgment, it may be set aside, regardless of a narrow statutory remedy, which at best is intended to adjust merely administrative irregularities. 52 Wis. 98; 49 Id. 47; 42 Id. 108; 18 Id. 92; 97 Cal. 305; 89 Wis. 347. See also 71 N.Y. 311; 123 Id. 35; 32 Ill. 192; 29 N.J. Law, 449; 38 N.J.Eq. 190; 49 Cal. 229. An arbitrary assessment without benefits is a constructive fraud and can be relieved against by courts of equity. 103 F. 362; 172 U.S. 269; 133 Ala. 587; 101 Ga. 696; 121 Ill. 128; 137 Ill. 51; 154 Ind. 652; 56 Md. 1; 57 Miss. 378; 34 Ohio St. 551; 16 Or. 450; 44 Vt. 174; 95 Ill. 346; 98 Ill. 94; Cooley on Taxation, vol. 2, p. 1459. See also Page & Jones, Taxation, 677; Ib. 790; 32 Mich. 119; 119 Cal. 604; Cooley on Tax. (3 ed.) 1459; 187 Ill. 12; 64 Ga. 783; 131 Iowa 659; 1 Story, Eq. Jur. 186; Hamilton on Special Assessments, 241, 551-2-3-4-5. All these cases and many others hold that fraud and demonstrable mistake avoid an assessment. 118 Wis. 254; 95 N.W. 126; 100 Wis. 200; 99 Id. 129; 92 Id. 429; 2 Desty on Tax. 894; 2 Cooley, Tax. (3 ed.) 1209.

Appellees are not barred by our statutes. Kirby's Dig. § 5685; Const. art. 2, § 22 and § 24, art. 5; art. 26, § 13; Kirby's Dig. § 5780; 181 U.S. 32; 189 Id. 419; 188 Id. 239; 16 Pa. 256; 40 Wis. 324; 6 Ark. 358. Statutes of limitation cannot affect the general doctrines of equity. 49 N.Y. 362; 74 N.Y. 194; 154 N.Y. 570. The Legislature cannot interfere with the constitutional powers of a court of chancery. 75 Mich. 282-5; 15 Wall. 547; 6 Houst. (Del.) 108; 24 N.J.Eq. (10 C. E. Gr.) 200; 25 Neb. 345. Fundamental rules of equity forbid the assertion of such a statutory bar. 39 W.Va. 75; 27 Am. Rep. 548; 173 Ill. 205; 33 Kans. 156; 62 Md. 225; 53 Neb. 164; 24 Mo. 20; 44 Neb. 223; 93 P. 231; 115 N.W. 957.

5. Courts of equity are prompt to arrest the evil effects of statutes of limitation and conclusive estoppels. Cooley on Const. Lim. 522-3 (7 ed.); 8 Mich. 429; 39 Id. 168; 74 N.Y. 194; 59 Mich. 355; 4 Met. (Ky.) 292; 5 Munf. (Ky.) 364; 7 Id. 162; 6 Biss. (U.S.) 79; 135 N.Y. 159; 22 Ark. 332; 21 N.J.Eq. 424. Section 5685, Kirby's Digest, only applies to administrative irregularities. Usurpation by limitation laws will not be tolerated in equity. Equity abhors constructive limitations, forfeitures and estoppels and conclusive probative presumptions. 21 Ark. 60; 71 Ark. 17; 78 Id. 580; 80 Id. 462; Ib. 316; 81 Id. 80.

OPINION

FRAUENTHAL, J.

This was an action instituted by the Board of Improvement of Sewer Improvement District No. 1 of the City of Fayetteville to recover the annual assessment for the year of 1909 levied upon the land of defendants situated in said sewer district for the benefits accruing thereto by reason of the construction of a sewer improvement. The defendants resisted the enforcement of the assessment upon the ground that said land received no benefit from the construction of said sewer system. They averred that the assessment of their land for such benefits was either the result of fraud or demonstrable mistake on the part of the board of assessors and for that reason was void; and they sought to enjoin the collection of any future assessments thereon.

From the pleadings and testimony, it appears that this sewer improvement district was duly established by the city council of Fayetteville on September 19, 1906, and embraced the entire city; and that, after the filing of the requisite petition in manner prescribed by the statute, a board of assessors was appointed, who assessed the value of the benefits against the various lots and tracts of real estate situated therein. The provisions of the statute were duly complied with in the matter of filing said assessments, and thereafter, on July 26, 1907, the city council duly passed its ordinance levying upon each tract and lot the benefit so assessed, and providing that the annual installments thereof should be paid on the 25th day of September, 1907, and of subsequent years. The defendants made no appeal from the action of the board of assessors in making said assessment of their property, and filed no proceeding for the purpose of correcting or invalidating the same. It was alleged in the complaint that the annual assessment due September 25, 1909, only was unpaid, and it does not appear from the testimony that the defendants are in default in paying the assessments due for the years 1907 and 1908.

The land of the defendants is situated in the extreme southwest portion of the city, and the nearest point at which any sewer pipe or main approaches it is on Hill Street, about 500 feet from the eastern boundary of the land, and about 1,400 feet from the dwelling thereon. The land lies about 35 or 40 feet below the grade of Hill Street. The testimony on the part of the defendants tended to prove that on this account it would be impractical to connect the land with the sewer mains as now located, and that for this reason the present location of the sewer improvement could in no possible way benefit the land.

On the other hand, the testimony on the part of the plaintiff tended to prove that a line of pipe could be run through the southeast corner of this land for a distance of probably 1,100 feet to a manhole on the town branch, the bottom of which is 50 feet lower than the elevation of this land, and that by this connection the sewage on this land could be practically and successfully drained therefrom. The establishment of this line, under the testimony, is contemplated by the plaintiff, although the testimony tends to prove that it would be quite expensive.

The testimony on the part of the plaintiff tended further to prove that by the construction of this sewer system in the proximity of the defendant's land benefits were received by it by reason of the improved sanitation.

The chancellor found that the property was not benefited by the improvement, and on that account the assessment thereof was made either through "fraud or demonstrable mistake," and thereupon entered a decree dismissing the complaint and enjoining the plaintiff from collecting any future assessments on said land.

It will thus be seen that the sewer improvement district was established in the manner provided by the statutes, and that the steps providing for the assessment of the benefits were taken in the time and manner therein prescribed. It is not urged by defendants that there was any illegality or irregularity in the formation of this district, or that any provision of the statutes was not complied with either in the time or manner of making the assessments. The sole contention made by defendants is that their lands did not receive any benefit from the construction of the sewer improvement, and on account of its location and the topographical conditions surrounding it it cannot receive any benefits therefrom. On this account they contend that the assessments made for these alleged benefits upon their land are illegal and void. On the...