Improvement District No. 1 of Clarendon v. St. Louis Southwestern Railway Co.

• Decision Date: 26 June 1911
• Citation: 139 S.W. 308,99 Ark. 508
• Parties: IMPROVEMENT DISTRICT NO. 1 OF CLARENDON v. ST. LOUIS SOUTHWESTERN RAILWAY COMPANY
• Court: Arkansas Supreme Court

139 S.W. 308

99 Ark. 508

IMPROVEMENT DISTRICT NO. 1 OF CLARENDON v. ST. LOUIS SOUTHWESTERN RAILWAY COMPANY

Supreme Court of Arkansas

June 26, 1911

Appeal from Monroe Chancery Court: John M. Elliott, Chancellor reversed.

Decree reversed and cause remanded.

Manning & Emerson, for appellants.

1. While there was testimony on the part of appellee railway companies that the improvements would be no benefit to them except as to their depots, cotton platforms, cars upon tracks, furnishing water, sanitary conditions, etc., yet none testified that, even upon this basis, the assessment of benefits was excessive or inequitable. All the property of the railway companies in the district was subject to assessment of benefits. 68 Ark. 376, 380, 381. And this court has held that property is always benefited by local improvements, and "the attempt to show to the contrary would be useless in all instances." 70 Ark. 451-467. Even if witnesses had stated that the assessments were excessive, such testimony could not operate to set them aside, because the findings of the board of assessors and the city council as to the amount of benefits to the various parcels of property in the improvement district, and the assessment based thereon, are conclusive, 108 P. 186; 123 N.Y. 39. Where a remedy is provided by statute for parties who contend that assessments are illegal or excessive injunction will not lie to prevent the collection of such assessments. 76 A. 250. Appellees, railway companies, brought no suit of the nature provided by law for the correction of assessments, nor within the time provided. Notice was given of the filing of the assessment with. the city clerk, as provided by statute. No appeal was taken to the city council and the only other statute giving the right to correct assessments (Kirby's Digest, § 5685) requires that suit be brought within 30 days after publication of the ordinance levying assessments. Not having done so, they are barred. 84 Ark. 257.

2. The petition for the establishment of the improvement was signed by a majority in value of the property owners within the district affected. The city council found "that said petition is found to contain and be signed by a majority in value of the real property owners within said city of Clarendon, Arkansas, and said improvement district adjoining the locality to be affected thereby as shown in the last county assessment on file in the county clerk's office for the county of Monroe, Arkansas," and this is the basis provided by law. Kirby's Dig., § 5717. The city council's finding on this point is presumed to be correct, and the burden is upon the appellees to show that the petition was not signed by such majority, or that the proceedings were illegal. 84 Ark. 257; 128 S.W. 358; 88 Ark 263, 266; 52 Ark. 301; Id. 353; 195 U.S. 223. The master's report shows on its face that the petition was signed by a majority in value of the property owners. He having been appointed upon the application and at the request of appellees, his finding is conclusive upon them. 74 Ark. 336; 85 Ark. 414; 91 Ark. 549. It has been held that, even when a master is appointed by the court upon its own motion, "if the court does not give to the findings of such master the weight which the evidence shows they are entitled to, its action will be reversed upon appeal." 92 Ark. 359. On the question of S. L. Jefferies' authority to sign certain names to the petition, he testified that all names signed by him were signed either by written or oral authority. "The burden was on appellees to show that the names of the property owners were not signed by authority." 84 Ark. 257. "Signatures to the petition may be by agent, and the authority of such agent will be presumed, or may be proved by evidence dehors the record." 28 Cyc. 977. And a corporation may sign by agent without direction of its board of directors. 58 P. 509-515. If a signature of a corporation to a petition was at the time unauthorized and the board of directors subsequently passed a resolution ratifying the signature to the petition, the corporation is bound by the act of the agent as effectively as if he had originally been given express authority, 11 Ark. 189; 84 Ark. 263; 28 Cyc. 977.

J. C. Hawthorne, for St. Louis Southwestern Railway Company, J. S. Thomas, Sr., for himself and others, and James H. Stevenson, for Arkansas Midland Railway Company.

1. The decision of the chancellor will not be reversed on the evidence unless it is against the clear preponderance thereof, and not supported by evidence which might fairly be said to have discharged whatever burden rested upon the appellees. 68 Ark. 314; Id. 134; 71 Ark. 605; 73 Ark. 489;67 Ark. 200; 75 Ark. 52; 72 Ark. 67. The presumption insisted upon by appellant that the finding of the city council as set out in the ordinance is correct is not controlling on the court in weighing the evidence. Such presumption prevails only in the absence of evidence to the contrary. There is no authority for appellant's contention that the findings of the chancellor should be set aside if the evidence is evenly balanced. The law is to the contrary. 77 Ark. 305. While it is true that the master was appointed on petition of one of the appellees, which appointment was resisted by appellant, yet the order appointing him refers to him certain enumerated facts for ascertainment, and the court reserved "the right to pass upon the correctness of any and all the findings of the master." His report and findings are not conclusive on either party, and the court could, either on its own motion or on exceptions filed, confirm or reject all or any of his findings. 92 Ark. 359; 91 Ark. 359, 553.

2. While it is true that prima facie "all the property of the railroad company was subject to assessment of benefits," yet it is a question open in every case to proof, and if certain property of the company, assessed in the district, can be shown to receive no possible benefit, while other portions may be benefited, the assessment will be confined to the portions so benefited. 68 Ark. (376), 380.

Manning & Emerson, for appellant in reply.

Appellees' complaints allege that the assessment "is excessive, unwarranted and equivalent to confiscation," but do not specify in what respect it is so. The courts will not review a local assessment on such general allegations. 98 Ark. 113.

OPINION

FRAUENTHAL, J.

These were suits instituted by the appellees attacking the validity of the formation of an improvement district in the city of Clarendon for the purpose of constructing a waterworks sewerage system and artesian well, and seeking to restrain the collection of assessments made upon their property therefor. Under and in pursuance of sections 5665 et seq., of Kirby's Digest, and laws amendatory thereof, the city council of the city of Clarendon laid off the entire city into one improvement district for the purpose of making the above improvement, and duly enacted and published an ordinance establishing said improvement district. Within the time prescribed by said statutes, a petition purporting to be signed by a majority in value of the owners of real property within said district was presented to the city council, praying that said improvement be made, and the costs thereof assessed upon the real property situated in the district. The city council found that said petition was signed by a majority in value of the owners of real property within the district to be affected by the improvement, and further proceedings were thereupon had within the time and manner prescribed by said statutes for the appointment of the various hoards and officers therein designated, who took the various steps and performed the various duties required by said statutes. The board of assessors duly made and filed an assessment of the value of all benefits accruing to the real property in the district by reason of the proposed improvement, of which notice was duly given. No appeal was taken to the city council by any one from the assessment so made and filed. Thereafter the city council passed an ordinance assessing the real property in the district for the payment of the benefits according to the assessment list made by said board of assessors in the manner and form prescribed by section 5684 of Kirby's Digest.

Within thirty days after the passage of the above ordinance, the appellees, the St. Louis Southwestern Railway Company, and the Arkansas Midland Railroad Company, filed these separate suits, and made substantially the same allegations in their complaints. They alleged a number of grounds upon which they based their attack upon the validity of the formation of said improvement district and their contention that the collection of the assessments made upon their property should be enjoined. Only two of these grounds are pressed by them upon this appeal:

First, because a majority in value of the owners of real property within the district did not sign the petition for the formation of the improvement district; and,

Second, because the assessment of the benefits against their property was excessive, unjust and unequal.

Some time after the expiration of thirty days from the passage of the above ordinance assessing said benefits, certain individuals asked to be made parties plaintiff to one of the above suits, and asked for the same relief therein prayed for, and this request was granted by the chancellor.

The appellant, the improvement district, filed answers to the said complaints, denying the material allegations thereof, and also made same cross complaints, in which it sought a recovery of the assessments against the several lots and parcels of real estate owned by the appellees, which, during the pendency of the suits, had fallen due. The two...