Moore v. North College Avenue Improvement District No. 1
Decision Date | 10 December 1923 |
Citation | 256 S.W. 70,161 Ark. 323 |
Parties | MOORE v. NORTH COLLEGE AVENUE IMPROVEMENT DISTRICT No. 1 |
Court | Arkansas Supreme Court |
Appeal from Washington Chancery Court; Ben F. McMahan, Chancellor affirmed.
Decree affirmed.
E B. Wall, for appellants.
1. For the purpose of testing the sufficiency of the complaint on demurrer, all its allegations of fact must be taken as true. 141 Ark. 8; 134 Ark. 106, 107; 31 Ark. 657; 77 Ark. 1; 110 Ark. 423; 107 Ark. 142; 75 Ark. 64; 90 Ark. 158; 96 Ark. 371.
2. It is therefore admitted as true that the control of the street for the purpose in question, was vested in the county court or judge thereof, acting through the road commissioners, at the time the street improvement district was organized, and still remains so vested. 97 Ark. 318, 321; 56 Ark. 205. Therefore the city council had no control or jurisdiction over the subject-matter, and was without authority to create the district. Moreover, the control of this street was still vested in the county court and road commissioners, by virtue of the special act No. 52, approved February 4, 1920, and referred to in the amended complaint. 118 Ark. 119; 130 Ark. 507; 139 Ark. 153; Id. 168; Id. 277. The power of the Legislature, in all matters of taxation, is limited only by the Constitution. 4 Dillon on Municipal Corporations, § 1366, pp. 2371-2374; Constitution, art. 2, § 23; art. 12, § 2; art. 16, § 5; art. 19, § 27.
3. The city council could not legally superimpose one district upon another, under the facts stated in the complaint. The result of the organization of the street improvement district was to create a second improvement district, for one and the same purpose, so far as pertains to the street in question, as that for which the road district was created, and it is therefore void. 123 Ark. 467, 470; 3 Dillon, Mun. Corp., § 1140, p. 1812 and note; 24 Ill. 496.
4. The assessment per se was illegally and improperly made. The allegations pertaining to the assessment may have been open to a motion to make the same more definite and certain, but we insist that they were impervious to a general demurrer.
George A. Hurst, for appellees.
Appellant declined to plead further. Therefore, even if the demurrer should have been treated as a motion to make more specific, it was proper to render judgment for the defendants. 132 Ark. 528. A complaint must state every essential element of the cause of action, and mere conclusions of law cannot take the place of such allegations. If it is defective in this respect, it is demurrable. 110 Ark. 423; 72 Ark. 478; 121 Ark. 261; 17 Ark. 445; Id. 603; 34 Ark. 169; 35 Ark. 555. Since the original complaint was filed more than two and one-half months after the city council had passed on the second petition, plaintiffs were barred from questioning the validity of the district. C. & M. Digest, § 5652; 131 Ark. 28; 134 Ark. 315. If a complaint fails to state a cause of action at all, it cannot be amended on motion to make more specific. 110 Ark. 130-139. Appellants never having requested a reduction of their assessments, or that they be given credit for any former improvement made, they cannot question the validity of the assessments here. 148 Ark. 623. The allegations as to double assessment amount to a mere abstract conclusion of law, which is refuted by allegations preceding it in the complaint. Moreover, the inclusion of the same territory in a new district does not of itself impute double assessment. 109 Ark. 97; 103 Ark. 463, 464; 121 Ark. 16.
OPINION
Appellants, who were plaintiffs below, are owners of real property in an improvement district in the city of Fayetteville, organized for the purpose of paving a street designated as North College Avenue, and they instituted this action in the chancery court, attacking the validity of the organization, as well as attacking the correctness of the assessment of benefits of their respective properties. The action was commenced more than thirty days after the city council passed upon the petition of property owners asking for the improvement and appointed the board of commissioners, but it was commenced within thirty days after the city council approved the assessment of benefits. The court sustained a demurrer to the amended complaint on the ground that facts were not stated therein sufficient to constitute a cause of action. We therefore have to deal only with the question of the sufficiency of the complaint, and in doing so we must treat the allegations as true.
Counsel for appellees insist that the demurrer was properly sustained to that part of the complaint which relates to the attack on the validity of the organization of the district on the ground that the action was not commenced within thirty days, as provided by statute (Crawford & Moses' Digest, § 5653), after the city council ascertained that a majority of property owners had signed the petition for the improvement. The answer to that contention is that the statute referred to applies only to a review of the findings of the city council as to a majority of property owners signing the petition--not to jurisdictional defects in the organization of the district.
The point of attack of appellants on the validity of the statute is that there had been previously organized and put into operation, under general statutes (Crawford & Moses' Digest, § 5299 et seq.), a road improvement district for the purpose of improving a road running to and through the city of Fayetteville and including North College Avenue, that the territory of the district now under review overlaps the territory of said road district, and that the present organization constitutes an encroachment on the road district and causes double taxation on property in the district for the same improvement. According to the allegations of the complaint, a road district, designated as Road Improvement District No. 2 of Washington County, was organized under general statutes in the year 1918, for the purpose of improving (paving with gravel or rock) a road extending through Washington County from the Crawford County line to the Madison County line, through the city of Fayetteville and along North College Avenue; that "all or nearly all of the real estate within the corporate limits of Fayetteville is being taxed for said road district," and that "said road district is still in progress, but that no work has as yet been done on the North College Avenue part thereof." It is also alleged in the complaint that said road district organization was validated by special statute enacted by the extraordinary session of the General Assembly in 1920, and approved February 4, 1920. It is charged in one of the paragraphs of the complaint, and it is contended in the argument here, that, "assuming the validity of the organization of said district, the necessary effect will be to withdraw, for the purpose of making said improvement, the streets and parts of streets constituting the said roadway or improvement through the corporate limits of the city of Fayetteville from the control of the city and to vest said control in the Washington County Court, until said improvement within the corporate limits has been made, and that said improvement through said corporate limits has not, as yet, been made;" and that "the municipality has been divested of all authority over said roadway within the corporate limits, including North College Avenue."
Counsel for appellees bring to our attention a general statute (containing the emergency clause) enacted by the General Assembly at the recent extraordinary session, and approved October 13, 1923 (after the rendition of the decree in this case), which reads as follows:
The question of the validity of this statute and its effect on the present litigation presents itself. Appellants contend that the statute is only prospective--not retroactive--in its terms and application. We do not agree to that view. The statute is necessarily retroactive if it can be legally made so, and is by its terms applicable to municipal districts theretofore organized. The fact that the statute was enacted since the rendition of the decree below does not prevent its having effect now. Sudberry v. Graves, 83 Ark. 344, 103 S.W. 728. The effect of the statute is to suspend or withdraw the authority of rural road districts in the improvement of streets in municipalities which are the subject of districts organized in municipalities for that purpose, and to validate municipal improvement districts organized to improve streets included in a general road district.
We conclude that the statute is valid and is applicable to the present controversy, for its effect is such as could have been imposed before the organization of either district, and it prescribes only such restrictions as could have been declared by law in the first instance. Sudberry v. Graves, supra.
There are no allegations in the complaint which show that the application of the statute in suspending the authority of the road district as to improvement of the street in question would result in an impairment of the obligation of a contract, or would result in unjust inequalities in taxation, or in taking property without due process of law. It is true that the complaint...
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