Cherry v. Bowman

• Decision Date: 16 December 1912
• Citation: 152 S.W. 133,106 Ark. 39
• Parties: CHERRY v. BOWMAN
• Court: Arkansas Supreme Court

152 S.W. 133

106 Ark. 39

CHERRY v. BOWMAN

Supreme Court of Arkansas

December 16, 1912

Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor affirmed.

STATEMENT BY THE COURT.

Appellant who was the plaintiff below, filed his complaint in the Pulaski Chancery Court against the defendants, who composed the Board of Improvement of Street Improvement District No 167 of the city of Little Rock, and prayed the order of that court, restraining the said board from proceeding to carry out the terms of a contract which said board had entered into with one M. D. L. Cook for the construction of the improvement for which the improvement district had been created: towit, the paving of a portion of East Fourth Street in said city.

There is an agreed statement of facts in the record, from which it appears, that the plaintiff is the owner of real property in the district, that the first petition required by law was signed by more than ten property owners within the district and designated the boundaries of the district, and described the improvement desired to be made; that this petition was granted by the city council and an ordinance was passed establishing the district as prayed for, and specified the purpose of the improvement to be undertaken; that, within less than ninety days after publication of this first ordinance, a second petition, signed by a majority in value of the owners of real property in said district, was presented to the city council, and specified the improvement desired, and suggested the names of the defendants as a board to proceed with the work; that these citizens, whose selection was petitioned for, possessed the qualifications required by law and were duly elected by the city council and thereafter duly qualified and organized in the time and manner required by the law; that the board selected an engineer, and, by resolution, directed him to prepare plans and specifications for the performance of the work; that the plans were prepared by the engineer and approved by the board, and these plans were so prepared that bids were invited for the use of either creosoted blocks or asphalt. A notice to contractors inviting bids was published in Chicago St. Louis, and the two daily papers of Little Rock, and from among a number of bids received the bid of defendant Cook was accepted, and the board entered into a written contract with him for the construction of the improvement. Among other provisions of the contract was one that the work should be commenced within ten days after written directions to proceed had been given by the engineer to the contractor. And it was further stipulated that the board of improvement had not at the time said contract was entered into made report to the city council of the character of material selected by them nor had they made report of the estimated cost of the improvement, nor had the board, prior to the receipt of said bids, determined the character of the material with which they would pave said street; but had deferred reporting to the city council the estimated cost of the work until they should determine the character of the material to be used; that the assessors had not been appointed by the city council to assess the benefits of the property in said district, and no assessment of the property had been made; that no ordinance had been presented to or passed by the city council, levying an assessment against the real property in said district for the purpose of paying the costs of the improvement, and making the assessment a lien on the land.

The appellant says in his brief: "The sole ground upon which we rest our appeal is that, until the value of the benefits had are assessed, the board of the East Fourth district had no power, right or authority, to impose any debt or liability upon the property in the district, as by awarding and executing a contract for the improvement."

Is this position well taken?

Affirmed.

Whipple & Whipple and J. A. Comer, for appellants.

It was essential to the validity of the contract and to the right of the board of improvement to award the same, that certain preliminary acts should have been performed before the contract was entered into. The improvement district statutes exactly prescribe the methods and routine to be followed in organizing a district and improving the same. The letting of the contract is the eighth, and practically the last, thing to be done. 27 S.W. 234.

Before the contract is let the board of improvement should know (1) the plans to be followed for the improvement; (2) their cost; (3) whether as planned the improvement will exceed 20 per cent. of the assessed valuation of real estate in the district, and (4) whether the cost will exceed the total value of the benefits assessed by reason of the improvements. If the last two questions can not be answered in the negative the board has no authority to proceed further; and until the value of the benefits has been assessed the board of improvement has no authority to impose any debt or liability upon the property in the district. 86 Ark. 1; 109 S.W. 526; Kirby's Dig., §§ 5667, 5680; 118 S.W. 109; 114 S.W. 42; 117 S.W. 1073; 93 S.W. 867; 109 Mo.App. 721, 83 S.W. 982.

J. W. Blackwood and W. B. Smith, for appellees.

There is no merit in the contention that the contract was prematurely let. The routine prescribed by the statute is not mandatory and this court has never so held; but it has has repeatedly held that the question of the kind of material to be used is left to the discretion of the commissioners unless the property owners limit the powers of the commissioners in the petition forming the district. It has also repeatedly held that the discretion of the commissioners will not be interfered with except for actual fraud. The Arkansas cases cited by appellants do not sustain their contention, and the Missouri cases are based upon statutes different from ours and those decisions are of no value here as precedents. 133 S.W. 1126.

OPINION

SMITH, J., (after stating the facts).

To sustain their position, counsel for appellee cite the cases of Jones v. Plummer, 137 Mo.App. 337, 118 S.W. 109; McCormick v. Moore, 134 Mo.App. 669, 114 S.W. 40, and Turner v. Springfield, 117 Mo.App. 418, 93 S.W. 867, which are all Missouri cases, and hold that it is an essential prerequisite to a valid assessment that the plans and specifications shall have been filed with the city clerk by the city engineer when the contract is let. But these are cases construing the statutes of that State or the ordinances of cities therein enacted pursuant thereto, which are materially different from those of this State, in the procedure for the construction, and for the letting of contracts for the construction, of these improvements.

In the case of McCormick v. Moore, above cited, the court quoted section 877 of the ordinances of the common council of the city of Kansas City, which provides:

"Before advertising for bids for doing any work mentioned in the first section of this chapter, the city engineer shall make out detailed plans and specifications for the work to be done and keep the same on file in his office for the information of all desiring to bid on the work."

Thus it is seen that in the case cited the law provides the order of procedure and contains the express mandate that the plans provided by the city engineer shall be filed with the city clerk before advertising for bids.

The difficulty about applying the principle announced in the decisions of the courts of other States construing statutes and ordinances on such subjects, as the one under consideration, is that they may contain provisions and directions that are essentially different from our own on the subject; and where that condition exists, these decisions of other courts are of no force here as precedents. McDonnell v. Improvement Dist., 97 Ark. 334, 133 S.W. 1126. Our statutes contain no express inhibition that the contract shall not be advertised and let before the assessments have been made, but is such inhibition necessarily implied? Appellant insists that it is, and cites the opinion of this court in the case of Watkins v. Griffith, 59 Ark. 344, 27 S.W. 234, as an authority to that effect. That was a case where a complaint had been filed to enjoin the collection of an assessment made by order of the city council to pay for an improvement along Louisiana Street in the city of Little Rock, under the provisions of the...