Davidson v. Sewer Improvement Dist.

• Decision Date: 24 November 1930
• Docket Number: No. 4.,4.
• Citation: 32 S.W.2d 1062,182 Ark. 741
• Parties: DAVIDSON v. SEWER IMPROVEMENT DIST.
• Court: Arkansas Supreme Court

32 S.W.2d 1062

182 Ark. 741

DAVIDSON v. SEWER IMPROVEMENT DIST.

No. 4.

Supreme Court of Arkansas.

November 24, 1930.

Rehearing Denied December 22, 1930.

Appeal from Washington Chancery Court; Lee Seamster, Chancellor.

Suit by B. R. Davidson against a Sewer Improvement District of the City of Fayetteville. From an adverse decree, plaintiff appeals.

Affirmed.

B. R. Davidson and V. J. Ptak, both of Fayetteville, for appellant.

Pearson & Pearson, of Fayetteville, for appellee.

SMITH, J.

A sewer improvement district, designated as No. 1, was organized in the city of Fayetteville in 1907, and plaintiff has since continuously paid the annual assessment of benefits levied against his property lying therein. On January 5, 1925, another sewer improvement district was organized, which was designated as Annex No. 1 to Sewer Improvement District No. 1. This last district was adjacent to the first, and certain lots, including those of plaintiff, were in both districts.

Betterments were assessed in the annex, and bonds were issued and sold to the McIlroy Bank & Trust Company, of which institution J. H. McIlroy, one of the commissioners, was president. The record discloses no objection or protest from any property owner to these proceedings. With the proceeds of the bonds so sold the improvement was constructed.

These bonds were sold to mature in ten years, but in October, 1928, proceedings were had, under the authority of Act No. 126 of the Acts of 1927 (Acts 1927, p. 388), to refund them upon the basis of twenty years for final maturity. The district had then been in existence for three years, and plaintiff and other property owners had paid certain installments of the assessed benefits. Section 5 of the act of 1927, supra, provides that any property owner may appeal from the refunding order, but that such appeal must be prosecuted within thirty days. No appeal was prosecuted from that order within that time at all. The refunding bonds were sold to the McIlroy Bank & Trust Company; the resale being merely an exchange of the old bonds for the new ones, with certain adjustments of the difference according to payments already made.

A reassessment of benefits was ordered and was made. Plaintiff and certain other property owners appealed to the city council from this reassessment, and the hearing thereof was set for January 7, 1929. On account of illness in his family, plaintiff was unable to attend the hearing and sent word to the city council asking a postponement in order that he might be heard, but the council refused to postpone the hearing and heard the protests in plaintiff's absence and denied him any relief. No showing was made that the notice of this action required by section 5668, Crawford & Moses' Dig., was not given. No action was taken by plaintiff until May 3, 1929, when he filed a complaint in which he attacked the assessments on numerous grounds and prayed that their further collection be enjoined. There was a general finding against plaintiff, and his complaint was dismissed as being without equity, and he has appealed.

The validity of the thirty days' limitation on the right to attack betterment assessments provided for in section 5668, Crawford & Moses' Digest, has been frequently upheld. In the late case of Carney v. Walbe, 175 Ark. 746, 300 S.W. 413, 414, it was said: "Where the property owner delays until after the period of time prescribed by statute for a direct attack on the action of the council establishing the district and the assessment of benefits to the real property situated therein, a suit by the property owner to review the proceedings of the common council establishing the district or the board of assessors in assessing the benefits to the real property within the district is a collateral attack, and such proceedings can only be set aside when they appear on their face to be demonstrably erroneous." See, also, Portis v. Ballard, 175 Ark. 834, 1 S.W.(2d) 1; Carnahan v. Fayetteville, 175 Ark. 405, 1 S.W.(2d) 10; Paving Dists. Nos. 2 and 3 of Blytheville v. Baker, 171 Ark. 692, 286 S. W. 945.

Certainly the action of the council, in refusing the postponement requested by plaintiff of the hearing of his protest against the assessment of his lots, does not make the assessment demonstrably erroneous. Conceding that the council abused its discretion in this respect, its...