McDonnell v. Improvement District No. 145, Little Rock

Decision Date23 January 1911
Citation133 S.W. 1126,97 Ark. 334
PartiesMCDONNELL v. IMPROVEMENT DISTRICT NO. 145, LITTLE ROCK
CourtArkansas Supreme Court

Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor affirmed.

Decree affirmed.

J. W Newman, Bradshaw, Rhoton & Helm and J. W. Blackwood for appellants.

1. Appellants are entitled to relief against the proposed cost of the improvement. It clearly exceeds 20 percentum of the value of the real property in the district as shown by the last assessment, in violation of the statute; and the fact that donations from the city and county are promised which may reduce the total amount to a sum within, or not in excess of, the 20 per cent. limit, does not legalize the proposed cost, because those promises are nonenforceable--the county and city are in no wise legally bound to make such donations. Kirby's Dig. §§ 5683, 5643; 55 Ark. 150; 67 Ark. 31; 84 Ark. 258; 86 Ark. 1, 71 Ark. 8; 72 Ark. 195; 65 Ark. 565; 76 Ark. 308; 65 Ark. 532; 71 Ark. 561; 75 Ark. 542; 36 Ark. 330; Endlich on Con. Stat. §§ 11, 23, 251; 143 Ill. 92; 18 L. R. A. 774; 183 Ill. 52; 61 N.E. 1042; 46 L. R. A. 193; 79 Miss. 754; 103 Mo. 431; 76 S.W. 497; 40 A 637; 60 A. 894.

2. The proceedings are void because no grade was established. Kirby's Dig. § 5672; 194 Ill. 521; 180 Ill. 124; 171 Ill. 253; 77 Ind. 92; 92 Ky. 89; 13 L. R. A. 666; 17 S.W 212; 11 Ky. Law Rep. 892, 13 S.W. 361.

3. The procedings are void because the kind of material was left in the alternative to the commissioners. 90 Ark. 39; 136 Cal. 88; 78 Iowa 235; 162 Ill. 383; 147 Ill. 327; 77 Ind. 92; 68 Mo.App. 483; 23 Ore. 123; 6 N.Y. 92; 164 Ill. 611; 82 Mo.App. 286; 40 N.E. 937; 106 Cal. 188; 47 Mo. 125; 140 Cal. 669; 134 Cal. 329.

4. The assessment was discriminatory, not uniform, and made upon the wrong theory, in this, that three of the property owners, whose property had previously been included on one side in another improvement district, were given a low assessment, thereby increasing the proportionate burden of other owners in the district. Where assessors arbitrarily ignore elements that exist, they destroy the true measure of the benefits. Actual fraud is not necessary to set aside an assessment. A wrong theory of assessment will justify setting it aside, though no fraud be proved. 86 Ark. 15, 18, 19.

5. The election of Cunningham as a commissioner was illegal. Not only was he an interested party in getting up the district, but he was an alderman charged with the duty to sit in judgment upon the protests and appeals of property owners, and, as the record shows, elected as commissioner by his own vote. 2 L. R. A. 510; 2 Ore. 246; 126 N.C. 374; 78 Am. St. Rep. 666; 20 L. R. A. 838; 105 N.W.969; 3 L R. A. (N. S.) 849; 23 Am. and Eng. Enc. of L. 268, and cases cited.

6. The district should be set aside for the reason that three petitions were filed, no two of which are alike, and that two of the signers of the petition signed under the express understanding that the paving was to be of brick.

Rose, Hemingway, Cantrell & Loughborough, for appellee.

1. Counsel for appellants err in their construction of the statute. The limitation of 20 per centum of the value of the real property in the district has reference to the total cost of the improvement to the property owners, and is intended as a safeguard of their rights in that respect; but the total expense of the improvement may lawfully exceed 20 per cent. of the total value, if funds can be provided otherwise than by assessment of the property owners themselves, for the excess, as, in this case, by contributions from the city and county. There is not only warrant of law for such contribution from both county and city, but it is also a duty imposed by law. 76 Ark. 22; Kirby's Dig. § 7351. The city has power "to keep in order and repair streets." Kirby's Dig. § 5456. See also 55 Ark. 159, 161.

2. Cases cited by appellants in support of their contention that the proceedings are void because no grade was established, are not in point. In the States from which cases are cited, the city council orders the improvement and assesses the cost of it against the property owners, and this method necessarily involves the features that the city council must exercise its discretion in ordering the improvement and set out in detail in its ordinance what shall enter into the work, materials, quantity of work to be done, and necessarily prescribing what the grade of the street shall be. Here the improvement can only be ordered upon consent of the majority in value of the property owners of the district. For distinction between the laws of this and other States on the subject, see Page & Jones on Taxation by Assessment, § 253. Our system results in the formation of a quasi public corporation. 71 Ark. 13; 81 Ark. 391; 86 Ark. 1.

The statute provides that "all such improvements shall be made with reference to the grade of streets and alleys as fixed, or may be fixed by the ordinance of the city." Kirby's Dig. § 5672. All that means is that the commissioners shall not make an improvement at some different grade from that established by the city, and that a grade must be established by the city before the work is done.

3. It was within the power of the property owners to delegate to the commissioners the selection of the particular kind of material, out of the various materials named in their petition, with which to do the paving. 55 Ark. 153; 59 Ark. 359; 71 Ark. 11; Kirby's Dig. §§ 5718, 5719; 90 Ark. 37.

4. Cunningham's position as councilman and as commissioner of the district are not antagonistic. The latter position is not an office of profit. Kirby's Dig. § 5670. Neither his position as commissioner nor his office as councilman is an office within the meaning of the Constitution. 72 Ark. 180; Id. 230. And his selection was opposed to no principle of the common law. 22 Mich. 104; 46 Kan. 634; 62 How. Prac. 323.

5. There is no discrimination. The testimony of appellants' witnesses, even standing alone, raises no presumption that the assessments were not properly made and properly equalized.

MCCULLOCH C. J., KIRBY, J., dissents.

OPINION

MCCULLOCH, C. J.

Appellants owned real estate within the limits of an improvement district in the city of Little Rock, organized for the purpose of street paving, and they instituted this action in the chancery court of Pulaski County against said improvement district, attacking the validity of its organization and the assessments levied, and seeking to restrain further proceedings thereunder. Answer was filed and proof taken, and on final hearing of the cause the chancellor dismissed the complaint for want of equity.

1. The validity of the organization is challenged on the ground that three petitions were filed at different times covering the same territory. One petition was filed in September, 1908, but no ordinance was passed by the city council creating the district. Nothing was done under it, and it must be treated as having been abandoned. Another petition was filed later, but nothing was done under that either. On June 28, 1908, a petition was filed, signed by the requisite number of property owners, and the city council duly passed an ordinance creating the district, and within 90 days thereafter a second petition was presented by a majority in value of the property owners asking that the improvement be made.

We can not see that the presentation and abandonment of the former petitions had anything to do with the regularity or validity of the last petition, which was acted on by the city council. The fact that the first two efforts to form an improvement district proved abortive and were abandoned did not exhaust the rights of the property owners under the statute to proceed again to the organization of a district.

2. It is next contended that the organization is void because the petitions failed to contain the specification of the kind of paving material to be used, and left it to the commissioners to determine the particular kind to be used. The petitions specified that the improvement should be made "by grading, draining, construction of curbing and paving, and that the paving be done by construction of macadam, bithulithic, wooden blocks, brick, or asphaltum pavements, as the commissioners of said district to be hereinafter appointed may select as being most substantial and economical for the benefit of the district, and that the curbing be built of such material as the commissioners hereinafter appointed may determine."

The statute provides that the real estate of any city or town, or any district thereof, may be assessed "for the purpose of grading or otherwise improving streets and alleys, constructing sewers or making any local improvements of a public nature," and that "when any 10 owners of real property in any such city or incorporated town, or any portion thereof, shall petition the city or town council to take steps toward the making of any such local improvement, it shall be the duty of the council to at once lay off the whole city or town * * * or the portion thereof mentioned in the petition * * * into one or more improvement districts, designating the boundaries of such district so that it may be easily distinguished." Sections 5664, 5665, Kirby's Digest.

The statute further provides that if, within three months after publication of the ordinance creating the district, "a majority in value of the owners of real property within such district adjoining the locality to be affected shall present to the council a petition praying that such improvement be made, which petition shall designate the nature of the improvements to be undertaken, and that the cost thereof be assessed and charged upon the real property situated within such district or...

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