Watkins v. Griffith

• Decision Date: 23 June 1894
• Citation: 27 S.W. 234
• Parties: WATKINS et al. v. GRIFFITH et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Arkansas Supreme Court

27 S.W. 234

WATKINS et al. v. GRIFFITH et al.¹

Supreme Court of Arkansas.

June 23, 1894.

Appeal from chancery court, Pulaski county; David W. Carroll, Chancellor.

Bill for injunction by C. Watkins and others against Joseph Griffith and others. From a decree denying the injunction, plaintiffs appeal. Reversed.

Sanders & Cockrill and P. C. Dooley, for appellants. Dan. W. Jones and McCain, for appellees.

MARTIN, Special Judge.

The bill of complaint in this case was filed by appellants, certain owners of real estate along Louisiana street, in the city of Little Rock, between Tenth and Fourteenth streets, to enjoin the collection of an assessment made by order of the city council to pay for an improvement made on that street. They allege that the assessment is without authority of law, and that their property is not legally bound therefor. The defendants, appellees here, claim that the proceedings under which said assessment was made are in substantial compliance with the law, and that, even if there were irregularities or defects, the appellants are estopped to deny the liability of their property for the same.

What is by law required to be done? Our state constitution, after very carefully guarding and limiting the general powers of taxation of the state and counties, in section 27, art. 19, provides as follows: "Nothing in this constitution shall prohibit the general assembly from authorizing assessments on real property for local improvements in towns and cities, under such regulations as may be prescribed by law, to be based upon the consent of a majority in value of the property holders owning property adjoining the locality to be affected." The law enacted in pursuance of this constitutional provision provides for the following steps to be taken: First. Ten resident owners of real estate in the proposed district shall apply by petition for the formation of an improvement district. Second. The city council shall lay off the district. Third. A majority in value of the owners of real estate in said district shall present to the council a petition praying that such improvement be made, which petition shall designate the improvement to be undertaken. Fourth. The council thereupon appoints the board of improvement of the district. Fifth. The board is immediately to form plans and procure estimates of the cost of the "improvements as prayed for in the petition." Sixth. The board reports plans and estimates to the city council. Seventh. The city council, by ordinance, shall assess the cost upon the real property in the district, and, if more than 1 per cent. of the value, shall provide for its payment by annual installments of 1 per cent. each year. Eighth. The board is to go forward with the work, and may do it by contract, and may borrow money and pledge the assessments for payment. Ninth. If first assessment is not sufficient to complete the improvement, may have additional assessment levied by the council as at the first. Mansf. Dig. §§ 826-837. The other sections of the act deal mainly with the collection of the tax and the condemnation and sale of real estate thereunder, and are very peremptory and summary in character.

What was done in this case? First. About July 22, 1890, a petition signed by 10 and more resident owners was presented to the city council, "to form said part of Louisiana street from 10th to 14th streets into an improvement district," for the purpose of "grading, rolling, and graveling it." Second. On July 22, 1890, the council passed an ordinance creating "Improvement District No. 33," for the purpose of "grading, rolling, graveling, or otherwise improving said Louisiana street." Third. About same time a number of the owners of real estate in district No. 33, as is recited in the application, presented to the city council a petition in which they pray that Louisiana street within said district be "graded, rolled, shaped, and graveled, and that the cost thereof be assessed and charged upon the real property situated within said district." To this petition is attached the certificate of the county clerk, as by the act provided, showing that the petitioners constitute a majority in value of the owners of real estate in the district, — aggregate value, as shown, $75,475; petitioners' property, $44,325. Fourth. On August 26, 1890, the board of improvement presented to the city council the following report: "We, the board of commissioners of grading district No. 33, beg to report that we have organized by the election of H. P. Edmondson as chairman, and that we have caused an estimate to be made which amounts to $750, which being one per cent. of the assessed valuation, we respectfully ask the passage of the attached ordinance," — signed by the members of the board. Fifth. On September 22, 1890, the council passed Ordinance No. 277, as follows: "An ordinance to assess the cost of grading that part of Louisiana street lying between Tenth and Fourteenth streets, in grading district No. 33, in the city of Little Rock, upon the real property of said district. Whereas, a majority of the property holders owning real property adjoining the locality to be affected and situated in grading district No. 33, of the city of Little Rock, organized for the purpose of improving the street therein, have petitioned the city council of the city of Little Rock for the construction of such improvement, and that the cost thereof be assessed against the real property in the said district and whereas, the estimated cost of said improvement is seven hundred and fifty dollars ($750), amounting to one (1) per centum of the assessed valuation of the said property: Therefore, be it ordained by the city council of the city of Little Rock: Section 1. That all the property situated in the said district be assessed at the rate of one (1) per centum on the dollar of the assessed valuation, as the same appears in the assessment last made by the assessor of this (Pulaski) county, now on file in the county clerk's office, which assessment shall be paid in one annual installment of one per centum, which shall be paid on or before the 20th day of October, 1890; and when said assessment shall have been paid, if the same shall prove insufficient to complete the said improvement, the board of improvement of the said district shall report the deficiency to the city council for further action as required by law." This ordinance is inserted in full, as it shows the status of the proceedings up to that time, and which seems to have been all regular and in conformity to law, except as hereinafter noted; and, doubtless, if the work had progressed on the plan adopted and up to that time acted upon by all parties, there would have been no disagreement. But here the trouble began. The board about this time became satisfied that the "graveling" would be more expensive than had been estimated, and that "macadam" would be more desirable, and could be obtained at little, if any, increased expense, and accordingly entered into a contract, of date October 25, 1890, with the Little Rock Granite Company, for an improvement of stone "guttering, curbing, and macadam," to cost $5,359.20, instead of the "graded and graveled" street, at $750, as at first estimated and reported to the council. And here we take occasion to say that there is nothing in the record to impeach in the least the integrity, good faith, and conscientious motives of the gentlemen constituting the board of improvement. They were resident citizens of prominence in the district, interested in the improvement, whose property had to bear its proportion of the tax, and who gave their time and labor gratuitously to the accomplishment of the work. Under this contract, the work was shortly afterwards begun by the contractor; and by the 18th of November, 1890, the greater part of the street along the four blocks from Tenth to Fourteenth streets had been plowed up, partial excavations made, preparatory for the macadam, and considerable stone had been hauled for the curbing and guttering, and some of the curbing was being put in place. At this juncture, many of the property owners, a majority in value, for the first time, as is alleged, made aware of change in the character of the work proposed by the board, and of its vastly-increased expense, prepared and sent to the board on the 18th of November a remonstrance, as follows: "Gentlemen: We, property owners in said district, respectfully state that, when we petitioned the city council for the formation of said district, we did so with the distinct understanding that the improvement would be grading, rolling and graveling only, at an expense not to exceed $10 a lot. We now understand that the contemplated improvement is stone curbing and gutterings and macadam, at an expense of over $100 per lot, which the value of the property in the district will not justify without greatly oppressing the owners. The contemplated change from gravel to stone, at the price to be paid, is an entire change from the desire and expectation of the owners who asked for the improvement, and one that they would not have originally asked for or desired. We further think that there is no power, under the ordinances creating the district, to make so radical a change in the sort of improvement to be made against the will of the property owners, and respectfully notify the commissioners, if the work of macadamizing, curbing, and guttering with stone is continued, we will resist the levy and payment of all taxes to pay for it in excess of the stipulated cost of the original improvement specified in our petition to the city council, and now notify the commissioners of our intention that they may take such a course in the matter as they may deem advisable." This was signed by owners representing nearly two-thirds in value of the real estate in the district. Upon its presentation to the board, the gravity of the situation was realized, the work was suspended, and a...