Lenon v. Brodie

• Decision Date: 24 December 1906
• Citation: 98 S.W. 979,81 Ark. 208
• Parties: LENON v. BRODIE
• Court: Arkansas Supreme Court

98 S.W. 979

81 Ark. 208

LENON v. BRODIE

Supreme Court of Arkansas

December 24, 1906

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

Decree reversed and cause remanded.

W. B Brooks and DeE. Bradshaw, for appellants.

1. After the city council has appointed commissioners, names of petitioners can not then be withdrawn from the petition. Such a procedure could have no other effect than to create endless uncertainty and confusion. There is no provision in the law for protests, and the question presented here was not before the court in the Rector case, 50 Ark. 116; and the Watkins case, 59 Ark. 358, was determined upon the issue that the district was formed for one purpose, and was converted into a district for an entirely different purpose.

For decisions in analogous cases, see 1 Sheld. 180; 57 Ala. 13; 18 Ohio, C. C. Rep. 605; 5 Ohio, N. P. 123. See also 28 N.Y 605; 24 N.J.L. 385; 112 Ind. 122; 30 N.E. 1095.

The decision in 71 Ark. 4 covers every proposition involved in the case, and is controlling. As in the case of the three-mile law, the local improvement district law makes no provision for protests. A petition in such case is in the nature of an election; and when it is presented to the city council and acted upon, the ballot is cast, and a person so voting (petitioning) can not change his vote. 70 Ark. 175; 40 Ark. 290; 51 Ark. 164. When the city council, the agent of the property owners, appointed the board of commissioners upon petition of the majority, the board became the agent of the property owners, and the petitioners were bound by its acts. 70 Ark. 451; 55 Ark. 148.

2. The burden is on plaintiff to show that a majority in value did not sign the second petition. The last assessment on file in the county clerk's office is fixed by statute as the source of determining the majority in value. Kirby's Digest, § 5717.

3. The expression of an opinion or belief, if so intended and understood, is not a representation of fact, and, even if false, does not amount to fraud. 14 Am. & Eng. Enc. of L. 34; ib. 39; ib. 47; 20 Cyc. 17; ib. 18; 1 Ark. 31; 68 Ia. 386; 86 U.S. 146. In the absence of injury, fraud affords no ground for judicial action. 11 Ark. 378; 43 Ark. 454. An injury can not result to one on account of an improvement. 71 Ark, 305; 20 Cyc. 13.

4. The board of commissioners are not bound to wait until after the levy of an assessment before making a contract. The assessment may be made either before or after the completion of the improvement. 25 Am. & Eng. Enc. of L. 1219, note 4.

5. The property owners who signed the second petition are estopped to deny or change the act. Herman on Estoppel, § 6; ib §§ 3 and 8; 33 Ark. 465; 35 Ark. 376; 52 Ark. 212; 31 Ark. 356; 2 Reid, Corp. Finance, § 572; 69 Ark. 287; 57 Cal. 406; 59 Ark. 513; 14 L. R. A. 575; 42 Ark, 152.

6. The boundaries of the district are within the discretion of the petitioners. "A tax for local improvement should be distributed among, and imposed upon, all equally, standing in like relation." 44 Vt. 186; 48 Ark. 383. And the action of the city council in defining the boundaries of the district is conclusive unless attacked for fraud or demonstrable mistake. 52 Ark. 107. In this case there is no proof that any real estate was left out of the district through fraud. The decision of the question of what property should be included or excluded rests with the Legislature or the subordinate body to which it submits the question. Gray, Lim. Taxing Power, 1888; 1 Abbott, Corp. 347 a; 60 Ia. 29; 120 Ill. 269; 128 Ill. 367; 2 Smith, Mun. Corp. 1240. See also 40 Kan. 353; 71 Mo. 493; 66 Pa. 454; 32 Ia. 271.

7. The value fixed by the assessor upon the church and school property included in the district, and not the market value of such property, is the proper value to be considered in determining the amount of the majority petition. Kirby's Digest, §§ 5717, 6976, 6987; 69 Ark. 68.

8. Street car property in the street is not subject to the assessment. Special assessments can be imposed on real property only. Kirby's Digest, § 5677; 25 Am. & Eng. Enc. of L. 1184, note 3; ib. 1188, note 6; 69 Ark. 68.

Robt. Martin, for appellees.

1. The only means by which the testimony in the case could make a part of the record (the same having been taken ore tenus at the bar of court) is by identifying it in the decree, or by a bill of exceptions, and neither has been done.

2. The constitutional provision for improvement districts, to be based upon the consent of the majority in value of the property holders owning property adjoining the locality to be affected, limits the power of the city council, and it is not authorized to leave out property that is in the district to be affected. Const. art. 19, § 27; 52 Ark. 107; 48 Ark. 270; Kirby's Digest, § 5676; 69 Ark. 68; 181 U.S. 351.

3. Though not subject to general taxation, church property is subject to assessment for local improvements, and extraneous proof of its value may be made. 69 Ark. 72. When the true value, as proved, of Winfield Church and the Arkansas Baptist College is considered, the majority in value is reduced to a minority.

4. In determining whether or not a majority in value had signed the petition, the city council were required to take and be governed by the valuation placed upon the property as shown by the last county assessment on file in the county clerk's office. Kirby's Digest, § 5717. The county clerk's certificate attached to the petition was not sufficient, but the council should have required the production of the assessment books, or an exemplification thereof, or at least an examination of the books by a committee.

5. Until the rights of third parties intervene, a petitioner has the right to withdraw his name from the petition asking for the improvement. The proceeding is in the nature of giving a letter of attorney. 31 Ark. 720; 59 Ark. 357. The district is the agent of the property owners (55 Ark. 157) ; and, being so, they have the right to revoke their agent's authority when they find that the agency will not be profitable, if the rights of third parties have not intervened. 88 Pa. 314; 57 Ala. 13; 42 Ind. 125; 58 N.J. 289; 63 N.Y.S. 878; 52 N.Y. 296.

BATTLE, J. HILL, C. J. MCCULLOCH, J. WOOD and RIDDICK, JJ., concur.

OPINION

BATTLE, J.

This appeal involves the validity of the organization of "Street Improvement District No. 117," of the city of Little Rock. On October 23, 1905, the petition of more than ten owners, resident in the district, was presented to the city council of Little Rock, asking for the laying off of "Street Improvement District No. 117," including therein the real property for 150 feet on each side of Fifteenth Street from Main to Pulaski, Pulaski from Fifteenth to Sixteenth, and Sixteenth from Pulaski Street to Park Avenue.

Fifteenth and Sixteenth streets run about east and west, and Pulaski Street and Park Avenue about north and south. Through the district, from east to west, a street railway is constructed and operated. The owner of the street railway, in consideration of the franchise granted it by the city, contracted to pave the streets over which its tracks are laid, between the tracks and for two feet on each side thereof, with the same character of material, and in like manner, as the remaining portion of the street is paved, and to change the material used from time to time as that on the other portion of the street may be changed, using the same kind of material.

On the 20th of November, 1905, in response to the petition, the council passed an ordinance establishing the district for paving, except the portion of the street the car company are bound to pave. On the 8th of January, 1906, and in less than three months after the ordinance establishing the district was passed, a majority in value of the owners of real property within the district presented their petition to the city council, which we shall call the second petition, asking that the improvement be made and the costs thereof assessed and charged upon the real property within the district, and asking for the appointment of three persons for a board of improvement. The county clerk of Pulaski County certified that the total assessed value of real estate within the district was $ 236,215, and that petitioners on second petition owned real property in the district of the assessed value of $ 148,900, showing a majority in value of $ 30,872 in favor of the petition. The council granted the petition, and elected Lewis Rhoton, George C. Naylor and Miles Scull members of the board of improvement; and they qualified as such board.

Three lots on the northwest corner of Fifteenth and Pulaski streets, three lots on the southeast corner of Sixteenth and Pulaski streets, and three lots on either side of Sixteenth Street and fronting on the west side of Park Avenue, were not included in the district. But the improvement nowhere runs by or alongside of any of these lots. The value of so much of the street railway as is in the district was not estimated and included in the valuation of the property in the district in determining the total value of such property and whether a majority in value of the owners of the real property in the district signed the second petition.

The board employed an engineer to form plans for the improvement of the district and to estimate the cost of the same, and on the 5th day of February, 1906, filed its report to the city council; and on the 16th day of April, 1906, filed an additional report, stating that the cost of the improvement to be made by the district would be about $ 40,500, and that it had procured donations of $ 18,500 from the city of Little Rock and the county of Pulaski.

On the 16th day of April, 1906, nearly five...