Wilson v. Blanks

• Decision Date: 27 June 1910
• Citation: 130 S.W. 517,95 Ark. 496
• Parties: WILSON v. BLANKS
• Court: Arkansas Supreme Court

130 S.W. 517

95 Ark. 496

WILSON v. BLANKS

Supreme Court of Arkansas

June 27, 1910

Appeal from Ashley Chancery Court; Zachariah T. Wood, Chancellor affirmed.

Decree affirmed.

Appellant pro se.

Only one improvement can be embraced in an ordinance authorizing the making of assessments. Hamilton on Ass., § 393; 2 Page & Jones on Tax. by Ass., § 790; 66 Cal. 313; 4 P 31; 52 Neb. 345; 72 N.W. 218; 61 Ill. 142; 11 Phila. 447.

George & Butler and Rose, Hemingway, Cantrell & Loughborough, for appellee.

The ordinance was valid. 75 Ill. 21; 46 Mich. 150; 59 Pa.St. 455; 180 Mass. 274; 62 N.E. 397; 187 Mass. 451; 73 N.E. 554; 81 Wis. 326; 51 N.W. 566; 216 Ill. 331; 74 N.E. 1044; 28 Wash 639; 69 P. 393; 162 Ill. 113; 38 N.E. 750; 130 Ill. 566; 22 N.E. 624; 123 Ill. 871; 14 N.E. 871; 96 Ga. 670; 23 S.E. 900; 29 Ind.App. 147; 53 N.E. 1071; 138 Cal. 52; 70 P. 1023; 213 Pa. 236; 62 A. 848; 36 O. St. 288; 47 Minn. 406; 50 N.W. 476.

OPINION

BATTLE, J.

On the 17th day of May, 1910, W. L. Blanks, J. H. Schaefer and D. E Watson, Commissioners of Water and Light District No. 2 in the town of Hamburg, filed a complaint in Ashley Chancery Court, and therein alleged:

"Plaintiffs say that they are the Commissioners of Water Light District No. 2 in the town of Hamburg, Arkansas, a district duly organized under the laws of this State, embodied in sections 5664 to 5742 of Kirby's Digest, and the statutes amendatory thereof; that said district was duly organized for the purpose of supplying the inhabitants of the territory embraced therein with water and electric lights as provided in said act, and the town council of the said town of Hamburg has duly levied its assessments for the making of said improvement. That the defendant is the owner of the following real estate in said town and within the limits of said district, towit: Lot No. 2 in block No. 13 in the town of Hamburg, Arkansas, and that the amount of the assessment levied against said property aforesaid is $ 7.50. The said assessment has long been overdue, and the defendant refuses to pay the same.

"Wherefore plaintiffs pray for a decree for the foreclosure of the lien of said assessment; that the property aforesaid be sold, and the proceeds applied to the satisfaction of said lien, and for all other proper relief."

The defendants answered and denied that the district was duly organized, and alleged that it was illegal because it embraces "two entirely distinct and separate improvements."

The plaintiffs amended their complaint by alleging "that said improvements are combined for purposes of economy, and that their combination is to the advantage of the property owners of the district, since in this way one plant, which is operated by day for water purposes and by night for electric lights, will supply all the requirements and be greatly to the advantage of the consumers, in that the total cost of the improvements will not exceed twenty per centum of the value of the real property in the said district as shown by the last county assessment."

The defendants demurred to the complaint as amended, and plaintiffs demurred to the answer.

The court overruled the defendant's demurrer, and sustained the plaintiffs, and, the defendants declining to plead further, rendered judgment in favor of plaintiffs, and the defendants appealed.

The Constitution of this State provides: "Nothing in this Constitution shall be so construed as to 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." Const. 1874, art. 19, § 27.

Section 5665 of Kirby's Digest, as amended, provides: "When any ten owners of real property in any such city or incorporated town, or of 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, if the whole of the desired improvement be general and local in its nature to said city or town, or the portion thereof mentioned in the petition, if it be limited to a part of said city or town only, into one or more improvement districts," etc.

Section 5667 of the same Digest provides: "If, within three months after the publication of any such ordinance, 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 improvement to be undertaken, and that the cost thereof be assessed and charged upon the real property situated within such...