Boles v. Kelley

• Court: Arkansas Supreme Court
• Writing for the Court: BATTLE, J.
• Citation: Boles v. Kelley, 117 S.W. 1073, 90 Ark. 29 (Ark. 1909)
• Decision Date: 22 March 1909
• Parties: BOLES v. KELLEY

117 S.W. 1073

90 Ark. 29

BOLES v. KELLEY

Supreme Court of Arkansas

March 22, 1909

Appeal from Sebastian Chancery Court; J. Virgil Bourland Chancellor; affirmed.

Boles and others, citizens and taxpayers of Ft. Smith, brought suit against Kelley and others, to restrain them from collecting a paving tax from plaintiff. The object of the suit was to test the legality of an ordinance organizing the city of Ft. Smith into a paving district. Defendants recovered judgment, and plaintiffs have appealed.

Decree affirmed.

T. S Osborne, for appellant.

1. It was stated by appellants in open court, and entered of record, that the ground of allegation in subdivision 2 and that in subdivision 3 of paragraph 2 were not the same nor intended to be the same. It was not essential that this be put in writing and formally "filed." Moreover, the two subdivisions are of themselves clear and distinct and need no explanation. Since they state a cause of action, the court should have required an answer, and, none being made they should be taken as confessed. 59 Ark. 344; 57 Ark. 30; 69 Ark. 68; 2 Dill. Mun. Corp. § 800; Hamilton's Special Assessments, § 338. The court erred in sustaining the "renewed motion" as to paragraph 5 of the complaint. The appellants did not rely on the ordinance, but attacked the validity of any assessment because there was no authority to make it. As to whether or not an assessment was filed with the city clerk, or any ordinance passed, and when, was defensive matter to be pleaded. Appellants have the right to bring this suit. Art 16, § 13, Const. 1874. The "exactions" therein mentioned means any kind of burden that may be imposed on a citizen or his property, and chancery has the power under this section of the Constitution to inquire into municipal exactions and enjoin their collection. Webster's Dict.; 34 Ark. 603; 39 Ark. 412; 33 Ark. 441; 46 Ark. 471; 52 Ark. 541; 2 Dill. Mun. Corp. §§ 914-16; Tiedeman on Mun. Corp. § 395; Id. § 397 and note; 30 Ark. 609-612; 3 Am. & Eng. Dec. in Eq., 574; 1 Id. 66; High on Inj., §§ 12, 61-2, 63a; 1 Pom. Eq. Jur. § 255; 175 Ill. 445; 43 F. 824. Where the remedy at law is difficult or doubtful, also to prevent a multiplicity of suits, chancery will interfere by injunction. 4 Ark. 302; 33 Ark. 633; 169 U.S. 466; 101 U.S. 601; 1 Pom. Eq. Jur. 3d Ed., §§ 255, 269; 87 Ark. 85.

2. As to the demurrer: There is left no law under which an improvement district may be formed. When the Legislature undertook to withdraw the exclusive privilege of signing from resident property owners and conferred equal authority on nonresidents, the law was void as being in conflict with the Constitution. Kirby's Digest, § 5665; Acts 1905 p. 301; art. 19, § 27, Const. Clearly the framers of the Constitution intended to limit the right to sign a petition to owners of real property who were also holders, and necessarily inhabitants, of the district to be affected. 71 Ark. 56; 67 Ark. 30. See also Kirby's Digest, §§ 5574-5577; Id. §§ 5542, 5593, 5548. It is against public policy. 55 N.Y. 50; Andrews' Am. Law, 495; 57 Miss. 399; Cooley's Const. Lim. 6th Ed. 223; 67 Ark. 35. The council had no power to include four other paving districts in paving district No. 5--an evident fraud and demonstrable mistake. 52 Ark. 107; Kirby's Digest, § 5674; 50 Ark. 116; 81 Ark. 208. Subdivision 2, par. 2, states a cause of action, and is not open to demurrer. Consent of a majority in value of the owners of real estate in the district to be affected is an essential prerequisite. 59 Ark. 344. Subdivision 3, par. 2, is good on demurrer. The laying out of the district is invalid, as not in compliance with the petition, which itself is invalid. There is no power under the law to include districts 1, 2, 3, and 4 in district 5, for one purpose and exclude them from another. It is further invalid for including an area of territory not in the State nor subject to taxation therein, the same not being within the boundaries of the State as defined by the Constitution, 1874, art. 1. 5 U. S. Stat. at Large, 50-52; 7 Id. 311; Id. 234; 30 Id. 497 (See 9 act June 28, 1898); 33 Id. 714; 1 Ark. 27; 2 Dallas (U. S.) 204. The laying out is further invalid because it embraces areas of land in certain alleged additions, the boundaries of which are not described. 3 Ark. 18; 35 Ark. 470; 69 Ark. 357; 77 Ark. 570; 36 Ark. 166. An assessment on the soil only, according to the area thereof alone, excluding improvements, is void. 48 Ark. 370; Id. 258; 32 Ark. 31; 49 Ark. 302; Kirby's Digest, §§ 5664, 5773; 71 Ark. 4. Where all assessments are not ad valorem and uniform, they are void. Art. 19, § 27, Const. The board was without power to submit the plans for paying less than the full roadway, and the council was without power to adopt such plans. 138 Cal. 364; 52 Cal. 440; 59 Ark. 35; 1 Dill. Mun. Corp. §§ 457, 419; 117 U.S. 693; 58 Ark. 257; 59 Ark. 459; 49 Ark. 204; 2 Dill. Mun. Corp. 4th Ed., §§ 604, 606. Paragraph 7, alleging payments under mistake of facts as well as law, and under coercion and such other facts as amount to involuntary payments, is good. A voluntary payment may be recovered where the consideration for which it was paid subsequently fails. 55 Ark. 376. See also 83 Ark. 275; 73 Ark. 576; 20 Eng. Law and Equity, 319; 3 Blatchf, 413; 52 Ark. 541; 70 N.Y. 497; 11 U.S. 22; 4 Dill. 10; 23 Int. Rev. Rec. 33; 95 U.S. 210.

F. A. Youmans, for appellees.

The only question is the sufficiency of the complaint.

1. There is nothing in the Constitution requiring the initial step to be taken by residents. Striking out the word "resident" before the word "owners" does not render section 5665, Kirby's Digest, void. Const., art. 29, § 27.

2. The second paragraph should have been made more definite and certain. No facts and circumstances constituting fraud are alleged. 84 Ark. 269.

3. Burke Brothers should have been made parties. They were the contractors and interested parties.

4. The court properly dismissed paragraph 5 for failure to comply with the order of court.

5. The fact that the two boards were elected upon the same ballot does not affect the validity of the organization.

6. If Mr. Kelley was interested he should be removed, but it is no ground for declaring the contract void. Kirby's Digest, § 5668.

OPINION

BATTLE, J.

Is the complaint of appellants sufficient? This question is raised by demurrer and motion to make specific and certain, and is the only question in the case.

Appellants, in paragraph one of their complaint, attack the amendment of section 5665 of Kirby's Digest by the Legislature of 1905. Section 5665 reads as follows: "When any ten resident owners of real property in any such city or incorporated town, or of any portion thereof, shall petition the city or town council to take steps toward the making of any such local improvement, it shall be the duty of the council to at once lay off the whole city or town, if the whole of the desired improvement be general and local in its nature to said city or town, or the portion thereof mentioned in the petition, if it be limited to a part of said city or town only, into one or more improvement districts, designating the boundaries of such district so that it may be easily distinguished," etc. The Legislature, at its session of 1905, amended this statute by striking out the word "resident" before the word "owners." Acts 1905, p. 301. Appellants insist that this amendment rendered the statute void. We are unable to understand how it could have that effect. There is nothing in the Constitution prohibiting such legislation. But on the contrary it expressly provides: "Nothing in this Constitution shall be so construed as to prohibit the General Assembly from authorizing assessments on real property for local improvements in towns and cities under such regulations as may prescribed by law, to be based upon the consent of a majority in value of the property holders owning property adjoining the locality to be affected; and such assessments shall be ad valorem and uniform." Art. 19, § 27. The words "property holders owning property" mean property owners owning property. The object of the section is to authorize the formation of districts for the construction of improvements based upon and paid for by local assessments upon the property in the locality to be affected, and of course had reference only to property owners owning the property in the district, irrespective of their residence.

In the second paragraph of the complaint they alleged that the petition purporting to be signed by a majority in value of the real property owners in the district was illegal and void:

"2. Because the same was signed by a majority in value of the property holders owning property adjoining the locality to be affected.

"3. Because the same was fraudulently signed by owners of real property in paving districts Nos. 1, 2, 3 and 4 heretofore established in said city, the real estate in said districts being estimated in making up a majority in value of the real estate included in said alleged District No. 5, and it is not assessed and taxed in the latter district, and should have been excluded, and, if excluded, a majority in value did not sign said petition.

"4. Because many signers were procured by fraud and misrepresentation, in that they were told 'that they would not have to pay till they got the pavement.'"

The defendants moved the court to require plaintiffs to make this paragraph "more definite and certain in that they be required to state whether the ground of allegation in subdivision two is the same ground of the allegation in subdivision three of said paragraph."

The two subdivisions of the paragraph being made to show a cause of action, the latter could have been reasonably...