Kirst v. Street Improvement District No. 120

• Decision Date: 30 March 1908
• Citation: 109 S.W. 526,86 Ark. 1
• Parties: KIRST v. STREET IMPROVEMENT DISTRICT NO. 120
• Court: Arkansas Supreme Court

109 S.W. 526

86 Ark. 1

KIRST v. STREET IMPROVEMENT DISTRICT NO. 120

Supreme Court of Arkansas

March 30, 1908

Appeal from Pulaski Chancery Court; Jesse C. Hart, Chancellor affirmed.

STATEMENT BY THE COURT.

Street Improvement District No. 120 was organized for the purpose of paving Main Street in the city of Little Rock, from Eighth to Twenty-fourth streets. No complaint is made against the organization or of any proceedings prior to the making of the assessment of benefits by the board of assessors. The original assessment (hereafter called first assessment) was made by the entire board of assessors, and filed with the city clerk, who in turn published the notice as required by the statute. Within the ten days from the date of the publication appeals or protests were filed by Kate C. Collins and twenty-eight other owners of property in the district asking for a correction of their assessments. Shortly thereafter two members of the board of assessors filed with the city clerk a formal communication, addressed to the mayor and city council, requesting that the assessment book be returned to the board of assessors for reconsideration. They stated that they were doubtful, at the time the assessment was made, as to whether they had adopted the proper method or basis upon which the benefits should be ascertained, and asked that the assessment book be returned for a further consideration, and for further legal advice and investigation as to the benefits to be derived, before making a further and final report to the council. A few days thereafter these two members of the board filed with the city clerk another formal communication, addressed to the city council, stating that the other members of the board had gone to Europe, and might not return for several months, and asking for the appointment of another in his place.

The city council referred the petitions, protests and appeals of the property owners, the book of assessment and the communications of the board of assessors above mentioned to the ordinance committee for consideration, recommendation and report to the council. That committee made a report to the council, in which they recited that the property owners objecting to said assessment had just causes or grounds for complaint against same; that the entire assessment was arbitrary--largely a matter of guess work, discriminating in favor of the most valuable and against the least valuable property in the district; and that it was, in the judgment of the committee, unjust, unequal and not in accordance with law and equity. The committee further reported that it was impractical to correct the assessment, and recommended that the book of assessment be returned to the board of assessors for the purpose of reconsideration and correction. On motion the city council adopted the report of the committee, and ordered the book of assessments returned to the board of assessors, as recommended. Thereafter two members of the board of assessors, in the absence of the other member in Europe, and without notice to him or any opportunity for him to be present or participate, proceeded to make a new assessment, and were about to file the same with the city clerk. At this point M. Kirst and a number of other property owners of the district filed their original bill in this case in the Pulaski Chancery Court, praying for an injunction prohibiting the filing of the second assessment. W. L. Terry and numerous other property owners, who had filed appeals with the city clerk from the action of the board in making the first assessment, intervened in said cause. The plaintiffs in the original bill afterwards filed an amended bill, alleging that the second assessment was null and void praying that the assessors be enjoined from filing, and all parties connected therewith from proceeding to enforce, the same, and asking that the first assessment be declared valid, subject to the hearing of the appeals of the protesting property owners. The defendants and the interveners filed answers and cross-bills, praying that the first assessment be set aside, cancelled and held for naught, that the second assessment be ordered to remain on file with the city clerk, and that the defendants be permitted and ordered to proceed with its enforcement as the legal and valid assessment of the board.

Testimony of two of the assessors and several real estate agents, together with the county assessment and other documentary evidence, was introduced in evidence.

Upon the final hearing the chancery court enjoined the enforcement of both assessments. The plaintiffs have appealed from the action of the court in enjoining the enforcement of the first assessment, and the defendants and interveners have by cross-appeals appealed from the action of the court in enjoining the enforcement of the second assessment. The testimony and other facts are sufficiently set out in the opinion.

Decree affirmed.

J. W. Blackwood, for appellants.

1. The power of special assessment is "based upon the theory that the owner of the property assessed is to receive a benefit corresponding to the amount assessed, and that this is to be paid to meet the cost and expense of the improvement. It is, therefore, of no consequence what the value of the lots may be, provided the enhanced benefit is equal to the assessment." 172 U.S. 270; 69 Ark. 76; 71 Ark. 27; Hamilton, Law of Special Assessments, 3, 50, 96 106, 109, 179, 183, 192. It is in the discretion of the Legislature to provide the basis of the assessment, whether of benefits or ad valorem. 69 Ark. 76; 71 Ark. 27. And the Legislature, by its act of May 3, 1901, Kirby's Digest, §§ 5676 et seq., exercised this discretion and provided for the assessment upon the basis of benefits alone. The doctrine that the assessment must be according to benefits received (172 U.S. 270) has now been overruled, and that case, in its main features, is still in force. Cases supra; 181 U.S. 324; Id. 371; 197 U.S. 430; 187 U.S. 546; 188 U.S. 516; 195 U.S. 359;; 205 U.S. 135; Hamilton on Assessments, § 233 et seq.

2. There was no authority of law for referring the assessment back to the assessors. Their power was at an end when they made and filed their assessment, and property owners who were not satisfied with the assessment had the right to appeal to the city council in the manner provided by the statute. Kirby's Digest, §§ 5679, 5680; 41 N.J.L. 90; 51 N.J.L. 109; Id. 544. The action of the assessors was conclusive, and the burden of proof is on those who attack the validity of the assessment. 84 Ark. 257. The council has no authority except that conferred upon it by the statute. 71 Ark. 24.

3. The second assessment, made in the absence of one of the board of assessors, and without previous notice to him, is void. 160 Ill. 611; 148 Ill. 221; 170 Ill. 316; 79 N.E. 962; 71 Ark. 24; 224 Ill. 617.

4. The statutory provisions limiting the cost of an improvement to twenty per centum clearly applies to the entire property of the district, not to the property of each individual property owner. Kirby's Digest; §§ 5683, 5716; 59 Ark. 159; 67 Ark. 44.

5. Testimony as to how the assessors arrived at their decision is incompetent. 48 Ill. 285; Id. 296; 130 Ill. 323; 168 Ill. 162; 66 Ill. 256.

W. Burt Brooks and De E. Bradshaw, for appellees.

1. The statute limits the assessment of benefits to 20 per cent. of the valuation as fixed by the county assessor. Kirby's Digest, § 3717. The plan contended for by appellants might easily result in practical confiscation of property of small value situated in the proposed district, because the owner of a lot of small value would be compelled to pay as much for the improvement as the owner of a lot of many times its value. 83 Ark. 54. Appellants' contention that the twenty per centum limitation applied to the whole of the property of the district, and not to the property of each individual owner, is contrary to the intent and spirit of the statute, as well as in conflict with the Constitution, art. 19, § 27. 42 Ark. 162; 32 Ark. 38; Kirby's Digest, §§ 5456, 2906, 5683; 48 Ark. 252; Sutherland on Stat. Con. par. 288.

2. The assessment by the board of assessors was not an assessment of the benefits to be received by the lot owners by reason of the improvement, but was merely an arbitrary apportionment of the cost of the improvement upon the various lots in the district, without respect to whether the lot received so much benefit or not. The Constitution provides that the assessment shall be ad valorem and uniform. The statute provides that the board of assessment shall assess to the best of their knowledge and ability the value of all benefits to be received by each landowner by reason of the proposed improvement as affecting each of said lots within the district. Kirby's Digest, § 5677; Cooley on Taxation 660; 54 Cal. 536; 40 Wis. 315; 69 Ark. 76; 71 Ark. 27; 70 Ark. 466; 48 Ark. 382; 59 Ark. 537; 64 Ark. 561; Hamilton on Special Assessments, §§ 235, 236, 240, note, 231; 148 Ill. 632; 150 Ill. 80; 147 Ind. 500; 49 L. R. A. 797.

3. Owners may appeal from the assessment to the city council, which shall hear the matter de novo. Kirby's Digest, § 5679. It shall enter on its minutes the result of its finding, and cause a copy to be certified to the board of assessors; and if any change has been made by the council, the assessors shall make their assessment conform thereto. Id. § 5680. If the council has the right to refer the assessment back to the assessors for corrections, which right the statute clearly confers, has it not also the right to refer an illegal assessment back for modification and correction?

4. The assessment by the two remaining members of the board, the third having gone to Europe, was authorized by law. Kirby's...