Brown v. Board of Commissioners of Paving District No. 3

• Decision Date: 20 October 1924
• Docket Number: 182
• Citation: Brown v. Board of Commissioners of Paving District No. 3, 265 S.W. 81, 165 Ark. 585 (Ark. 1924)
• Parties: BROWN v. BOARD OF COMMISSIONERS OF PAVING DISTRICT NO. 3
• Court: Arkansas Supreme Court

265 S.W. 81

165 Ark. 585

BROWN v. BOARD OF COMMISSIONERS OF PAVING DISTRICT NO. 3

No. 182

Supreme Court of Arkansas

October 20, 1924

Appeal from Crawford Chancery Court; J. V. Bourland, Chancellor affirmed.

Decree affirmed.

Starbird & Starbird, for appellants.

The plea of res judicata can only be available against one who was either a party or a privy to a party in the action pleaded. 96 Ark. 451; 105 Ark. 86. The organization of two districts to construct a single improvement is illegal and void, regardless of the cost of the improvement. 123 Ark 467. The commissioners erred in including the value of the courthouse and grounds in their assessment. 88 Ark. 406; 141 Ark. 186; 123 Ark. 467. Public property, not being assessable, should be excluded in determining the value of the real property in an improvement district. 69 Ark. 69.

E L. Matlock, for appellees.

When one or more of the taxpayers in a municipal improvement district, similarly situated, brings a suit attacking the legality of the formation of the district or its legal existence, or taxes and assessments levied by it, such suit is essentially a suit for all the property owners and taxpayers in the district. A judgment against a county or its legal representatives, in a matter of general interest to all its citizens, is binding upon the latter, though they are not parties to the suit. Freeman on Judgments, 3rd ed., § 178. Where a citizen and taxpayer brings an action in behalf of himself and other taxpayers against a municipality every citizen is regarded as a party to the proceedings, and bound by the judgment rendered. 15 R. C. L. § 510; 107 P. 163 28 Kan. 289; 26 Kan. 658; 123 Ill. 122; 13 N.E. 161; 13 S.C. 290; 35 Conn. 526; 16 How. 303; 14 L. ed. 942; 13 Wash. 141; 42 P. 541; 34 W.Va. 730; 12 S.E. 859; 133 N.Y. 187; 30 N.E. 965; 31 N.E. 334; 60 Vt. 1; 12 A. 224; 57 Ohio St. 132; 48 N.E. 667. A former judgment is evidence of nothing in a suit between strangers to the record, except the rendition of the judgment. 96 Ark. 451; 105 Ark. 86. The findings of the city council that a majority in value signed the petition is final and conclusive. 131 Ark. 28; 132 Ark. 511; 131 Ark. 429.

OPINION

HART, J.

This appeal involves the correctness of a decree of the chancery court in which the complaint of certain landowners attacking the organization of municipal improvement districts and seeking to restrain the commissioners from constructing the improvements was dismissed for want of equity.

On the 31st day of May, 1923, appellants brought this suit in the chancery court against appellees to restrain them from proceeding further in the construction of two local improvements.

Appellants allege that they are owners of real property within the limits of each of the improvement districts, and that appellees are the commissioners of both districts.

The complaint alleges that two improvement districts were formed in the city of Van Buren having the same commissioners, assessors, and engineers; that one of said districts was organized for the purpose of building pavements upon and along certain streets in the city of Van Buren, and that the other district was organized for the purpose of building curbs and gutters along the same streets; that the districts have the same boundaries and were organized at the same time, and therefore constitute a single improvement.

The complaint also alleges that the cost of the improvement in one of the districts amounts to more than twenty per centum of the assessed value of the property therein.

It appears from the record that other owners of real property in the districts brought suit in the chancery court against the commissioners of the districts to enjoin them from proceeding further with the construction of the proposed improvements. One ground of attack was that the commissioners assessed and levied a tax of more than twenty per centum of the value of the real property of the districts according to the last county assessment. Another ground of attack was that the improvements constitute in fact a single improvement, the cost of which exceeds twenty per centum of the value of the real estate of the district. The chancery court dismissed these suits for want of equity, and an appeal was taken to this court. The decree was reversed because the cost of the improvement exceeded the twenty per cent. limit provided by statute, and the court also held that the assessments were void because they were not made upon a proper basis. In that case, as well as in the instant case, it was contended that the fact that the districts were organized at the same time, and that one was for paving and the other for curbing and guttering the same streets, showed as a matter of law that but a single improvement was intended. The court, following the case of Bottrell v. Hollipeter, 135 Ark. 315, 204 S.W. 843, held that, while the power to pave may include the cost of curbing and guttering, yet they are not convertible terms, and do not necessarily include each other so as to constitute a single improvement. Meyer v. Board of Improvement of Paving District No. 3, 148 Ark. 623, 231 S.W. 12.

In Cooper v. Hogan, 163 Ark. 312, 260 S.W. 25, this court held that the determination of a city council in including property in an improvement district as to the singleness and unity of the improvement project, as well as the selection of the property to be benefited thereby, is conclusive except for fraud or demonstrable mistake.

Precisely the same issue on this point is raised...