Osborne v. Board of Improvement of Paving District No. 5 of Fort Smith

• Decision Date: 25 April 1910
• Citation: 128 S.W. 357,94 Ark. 563
• Parties: OSBORNE v. BOARD OF IMPROVEMENT OF PAVING DISTRICT NO. 5 OF FORT SMITH
• Court: Arkansas Supreme Court

128 S.W. 357

94 Ark. 563

OSBORNE v. BOARD OF IMPROVEMENT OF PAVING DISTRICT NO. 5 OF FORT SMITH

Supreme Court of Arkansas

April 25, 1910

Appeal from Sebastian Chancery Court; J. V. Bourland, Chancellor affirmed.

Judgment affirmed.

T. S Osborne and James Brizzolara, for appellant.

The action of the council in including property and assessing it is only prima facie evidence that it is included and benefited. 52 Ark. 107; 84 Ark. 257. The council's findings are only conclusive when the statute makes them so 2 Dill. Mun. Corp. 800; 117 U.S. 683. A law must be interpreted in favor of the citizen when burdens not known to the common law are imposed. 71 Ark. 556. The same territory cannot legally be made part of two levee districts and subjected to levee taxes in both. 37 La.Ann. 538; 1 Cooley, Tax. 394; 19 Mo. 179; Kirby's Dig., § 5683. Property must be affected or benefited, or it is not legally in the district. 70 Ark. 451; 84 Ark. 390.

Youmans & Youmans, for appellee.

The objection to the introduction of the ordinances on the ground that they were incompetent, irrelevant, and immaterial amounts to a claim that the ordinances were not properly published. The burden of proof is on the party making such claim. 53 Ark. 368; 56 Ark. 370; 68 Ark. 376. The action of the city council in including the four old districts in No. 5 was not void. 84 Ark. 257; 52 Ark. 107.

OPINION

MCCULLOCH, C. J.

The Board of Improvement of Paving District No. 5 of Fort Smith, an improvement district organized for the purposes which its name indicates, instituted this suit in the chancery court of Sebastian County, Fort Smith District, against defendants Osborne and certain other owners of real property in said district, to enforce payment of special assessments levied on the property. The complaint is in conformity with the special provisions of the statute respecting such suits. Kirby's Dig., § 5691 et seq. The defendants answered, and on hearing the cause the court rendered a final decree for enforcement of the assessments, from which decree defendants have appealed.

The statute provides that if an appeal be taken from a decree in a suit of this kind the "transcript shall be filed in the office of the clerk of the Supreme Court within twenty days after the rendering of the decree appealed from," and that "no appeal shall be prosecuted from any decree after the expiration of the twenty days herein granted for filing the transcript in the clerk's office of the Supreme Court." Kirby's Dig., §§ 5706-5709).

The appeal in this case was taken as soon as the decree was rendered, but the transcript was not filed within twenty days thereafter. The defendants filed an affidavit, which is incorporated in the transcript, tending to show that the delay in filing the transcript in this court was caused by counsel for plaintiff withdrawing from the office of the clerk of the lower court some of the documentary evidence on which the case was tried.

Inasmuch as the case is to be affirmed on other grounds, we will not attempt to decide how far the above quoted statute is applicable, or whether this court possesses the power to extend the time for filing transcripts in such cases, or whether the defendants have in proper manner shown sufficient excuse. We pretermit a discussion of those questions. The case of Boles v. Kelley, 90 Ark. 29, 117 S.W. 1073, is decisive of most of the questions raised, and we will not discuss the questions so decided.

The defendants filed a paper suggesting the disqualification of the chancellor, the Hon. J. V. Bourland, on the ground of interest in the controversy, alleging that he resided within the territorial limits of said district and owned real property therein, "affected in value by reason of the proposed improvement in said paving district." The chancellor overruled the suggestion or motion, and declined to certify his disqualification. In overruling the suggestion, the chancellor stated that "his property was located on 14th Street, that said street was paved, and that the assessments thereon had been paid."

It does not appear that the chancellor had any interest in the result of the litigation, other than the general interest which any other citizen and property owner in the district had. In fact, the suggestion of disqualification seems to be based on the alleged fact that the chancellor's real property in the district was "affected in...