Conway v. Commissioners of Board of Improvement District No. 20

• Decision Date: 06 October 1924
• Docket Number: 160
• Citation: 265 S.W. 45,165 Ark. 487
• Parties: CONWAY v. COMMISSIONERS OF BOARD OF IMPROVEMENT DISTRICT NO. 20
• Court: Arkansas Supreme Court

265 S.W. 45

165 Ark. 487

CONWAY v. COMMISSIONERS OF BOARD OF IMPROVEMENT DISTRICT NO. 20

No. 160

Supreme Court of Arkansas

October 6, 1924

Appeal from Miller Chancery Court; C. E. Johnson, Chancellor affirmed.

Decree affirmed.

H M. Barney, for appellant.

The plans for the improvement filed with the city council do not meet the requirements of the statute, C. & M. Digest, § 5656. They are too indefinite and uncertain to enable property owners to tell what thickness the concrete base was to be, or of what material, whether of brick, asphalt, or indeed, what other material was to be laid on such concrete base. Moreover, as to the repair of defective places, whether that is to be done with brick, asphalt or gravel. It was therefore impossible for the commissioners to make a valid assessment of benefits. 154 Ark. 38; 134 Ark. 318. Since no definite plans had been made, the assessment is invalid and of no effect.

Henry Moore, Jr., for appellee.

1. This district was legally organized under the general law, C. & M Digest, §§ 5649 to 5668 inclusive. Because of the failure of the gravel base, laid under the original contract, to support the concrete asphalt wearing surface, and at the instance of the commissioners of the district, act No. 643, Acts 1923, was enacted, to the end that a proper and suitable pavement might be put down. Attention is called to §§ 1, 2, 3, 4, and 5 thereof, and to the fact that this act changes somewhat the procedure from that prescribed by the general law. It will be noted that, under the general law, the majority petition is signed before the assessment is made, and therefore before the property owners can tell what amounts they will be required to pay; but under the special act, each property owner, in signing the majority petition, knew from the plans filed the character of the paving that would be put down by the commissioners, and also knew the amount of the assessment of benefits against his property for such paving. There is no merit in appellant's contention that the assessment is void for uncertainty in the plans, etc. They were filed pursuant to § 2 of the special act, and the assessors thereupon proceeded to make the assessment of benefits. It has frequently been held that the commissioners, in making plans and carrying them out, are vested with a wide authority and discretion, and need only put in an improvement of the general kind and character petitioned for. 97 Ark. 338; 105 Ark. 69. Appellant contends that this court has held, in 134 Ark. 315, that a definite plan should be made. Crawford & Moses' Digest, § 5656, uses only the word "plans" and does not specify how definite same shall be. It is certain that the word "definite," as used by the court in above case, means a plan of the general kind and character called for by the original petition, not detailed plans and specifications such as are necessary in letting a contract. See also 155 Ark. 327; 150 Ark. 444.

2. This is an attack upon the assessment of benefits, and the suit not having been brought within 30 days after publication of the ordinance required by statute, C. & M. Digest, § 5668, the action is barred. 150 Ark. 447; 158 Ark. 191.

OPINION

SMITH, J.

Street Improvement District No. 20 of the City of Texarkana was organized in 1913. Bonds were sold, the contract was let, and more than one-third of the district paved with the type of pavement called for by the original plans. The pavement originally contracted for was a gravel base with a wearing surface of two-inch concrete asphalt. The war and the litigation detailed in the case of Burke Construction Co. v. Bd. of Improvement of Paving District No. 20, 161 Ark. 433, 256 S.W. 850, affecting this district, delayed the completion of the work, and it developed that the pavement was not suitable for the city of Texarkana, as the water percolated through and under the gravel base, the gravel broke and raveled away, causing the wearing surface to fail because of the lack of support from the gravel base. Relief was needed, and this was sought to be afforded by the introduction and passage of an act in the General Assembly of 1923, which became Act 643. Special Acts 1923, p. 1574.

Section 1 of this act authorizes changes to be made in the plans theretofore adopted.

Section 2 requires that any change or alteration of the plans be filed with the city council of Texarkana, and that, when so filed, the assessors of the district must readjust and revise the assessment of benefits in accordance with the changed plans.

Section 3 authorizes the district to borrow money to the extent of the cost of the improvements.

Section 4 requires that a petition of the majority in value of the property owners must consent to the revised and readjusted assessments of benefits before the same shall become effective, if the revised assessments exceed twenty per cent. of the assessed value of the real property in the district for the year 1913.

Section 5 requires publication of notice of the meeting of the council to ascertain if a majority in value of the property owners have petitioned for the improvement, and provides a limitation of thirty days on the time for instituting suit to question the finding of the council.

Appellant is the owner of property in the district, and filed a bill in the chancery court questioning the validity of the assessments made against his own and the other property in the district. The ground of his attack is that the proposed amended plans were void because they were not sufficiently definite and certain to form the basis of an assessment and to advise the property owners of the improvement to be made.

The commissioners made the report to the council contemplated by act 643 of the Acts of 1923. This report named the streets to be paved, and gave the width of the proposed pavement, and, after doing so, concluded with this statement: "The pavement to be put down on the streets above described will be brick, asphalt, or other suitable wearing surface, laid on a concrete base. On streets in the district not described above, and already improved, the defective places are to be relaid and streets put in condition, using materials suitable to the type of pavement already in place."

The report gave the estimated cost of the proposed improvement at $ 302,838.25.

After the coming in of this report the assessors made the revised assessment, and the property owners thereafter...