Thomas v. Street Improvement District No. 296
| Decision Date | 09 April 1923 |
| Docket Number | 283 |
| Citation | 249 S.W. 590,158 Ark. 187 |
| Parties | THOMAS v. STREET IMPROVEMENT DISTRICT NO. 296 |
| Court | Arkansas Supreme Court |
Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor affirmed.
Decree affirmed.
Will G. Akers, for appellant.
Commissioners of an improvement district have no power to withdraw an assessment of benefits and substitute therefore a new assessment of benefits, and such assessment and the city ordinance confirming same are void. Kirst v Improvement Dist., 86 Ark. 1.
Wallace Townsend, for appellee.
No ordinance of the city was passed relating to the first or withdrawn assessment, but the substituted assessment of benefits was duly confirmed by ordinance, and this suit was filed fifty days after the publication of the assessment ordinance. Can not be attacked after thirty days. Sec. 5668 Crawford & Moses' Digest. Any one failing to attack the finding of the city council as to a majority having signed the petition within thirty days after such finding is made is barred, notwithstanding the petition may lack a majority. Jacobs v. City of Paris, 131 Ark. 28; Waters v. Whitcomb, 110 Ark. 511; Pope v. Nashville, 131 Ark. 429. 86 Ark. 1 not in point on question, that suit having been brought before assessment ordinance was passed. Attack on assessment which council had referred back to the assessors with directions barred after thirty days. Ingram v. Thomas, 150 Ark. 443; Ahern v. Board of Improvement, 69 Ark. 68; also Board of Improvement v. Offenhauser, 84 Ark. 257. Boles v. Kelley, 90 Ark. 29; Webster v. Ferguson, 95 Ark. 575; Board v. Pollard, 98 Ark. 543; Meyer v. Board, 148 Ark. 623; Stiewel v. Fencing Districts, 71 Ark. 17, 27. Similar statutes have been construed and upheld. Rockwell v. Junction City, 92 Kan. 513, 141 P. 299; Loomis v. City of Little Falls, 176 N.Y. 31, 68 N.E. 105; Jackson v. City of Denver, 92 P. 690; Blackwell v. Village Coeur D'Alene, 90 P. 353; McKone v. City of Fargo, 138 N.W. (N. D.) 967; Schultz v. Ritterbush, 134 P. 961; Gastra v. Kenosha County, 130 N.W. 870. The suit is barred, and the judgment should be affirmed.
OPINION
Street Improvement District No. 296 of Little Rock was created under general statutes (Crawford & Moses' Digest, § 5647 et seq.) for the purpose of improving a certain street in the city. The district was legally created, and a majority of the property owners petitioned for the construction of the improvement, as provided in the statute and, upon presentation of the petition to the city council, assessors were appointed to appraise the benefits. The list of assessments made by the board of assessors was filed with the city clerk, and notice thereof was given; protests were filed by certain property owners, and a time was set for hearing the protests, but, before the time arrived, the city council passed a resolution, upon the request of the commissioners of the district, allowing the assessment list to be withdrawn, which was done. A new assessment list was prepared and filed by the board of assessors, and, after notice thereof, was placed before the council.
There was an ordinance duly passed by the city council levying the assessments in installments on the real property in the district, and the ordinance was duly published as provided by statute. Crawford & Moses' Digest, § 5668. More than thirty days thereafter appellant, who owns real property in the district, commenced this action to restrain the board of commissioners from enforcing payment of said assessments, on the ground that the levy was void for the reason that there was no authority for withdrawal of the first assessment list and the substitution of another list of assessments made by the board of commissioners. The court sustained a demurrer to the complaint and dismissed the complaint, and an appeal has been prosecuted to this court.
Counsel for appellant rely upon the decision of this court in Kirst v. Street Improvement Dist., 86 Ark. 1, 109 S.W. 526, for support of the contention that there is no authority to withdraw a list of assessments in a district of this kind, or to make a new assessment after such withdrawal.
In the case cited we held that the maximum of authority to be exercised by the city council is to hear and determine appeals of...
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...71 Ark. 17, 24, 70 S.W. 308, 71 S.W. 247." See, also, Ingram v. Thames, 150 Ark. 443, 234 S.W. 629; Thomas v. Street Improvement District, No. 296, 158 Ark. 187, 249 S.W. 590. In conclusion, we may again emphasize that the bondholders' money has been expended for such improvements and they ......
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